Victimisation

Principle is that V complains about something and as a result suffers a consequence.

 Less favourable treatment than someone in the same position who had not

complained etc of behaviour that was contrary to RRA or SDA.

 Other e/es who support V are covered by the victimisation rules as well

 No need of conscious motivation by employer

 Allegations might have been unfounded, but must have been made in good

faith, for employee to succeed.

Special Cases

 Pregnancy and maternity

o Direct discrim – no need to compare unless for illness persisting after

maternity leave ended – then compare.

 Gender reassignment

o SDA amended to include as direct discrim.

Remedies

 Declaration of rights – can have terms void. Bit pointless as all it does it tell

the e/ee that he has the right not to be discriminated against – not a significant

remedy

 Order to take action to remove the effect of the act complained of…. A

recommendation by the ET for :

the e/er to remove the effect of the act by, for example,

disciplining the responsible e/ee,

5

expanding training on re discrimination,

training re interviewing.

If an extra promotion comes up the e/er mut consider the V (but

could therefore discriminate against others) and/or

 Compensation

o Which can include damages for injured feelings and PI damages for

psychiatric harm.

 No limits on compensation (average award £13,000)

 Not many claims successful, not many brought.

 Includes pecuniary losses such as LOE

 Can get aggravated damages if V dealt with in an insulting or aggressive manner. If you suffer any problems, direct your concerns to Legislation Notary London

 

NB – Schroeders case – female employee won over £1m, damage to employer huge,

lost millions due to adverse publicity and lost man hours. So employer’s need to take

claims very seriously, and take their time answering the questionnaire.

Sexual Harassment – old law

Will soon be separate offence according to abogados de accidentes de trabajo

 Generally ongoing rather than a one off and time runs from the last act

 Currently not a separate offence so must use direct discrimination and NOT

indirect D

 Definition : ‘unwanted conduct which violates dignity’

 Unlawful act is subjection to a detriment

 Need less favourable treatment – although sex or specific comments don’t. If

sex/gender specific then you don’t need a comparator – it is sex discrimination

Reed v Stedman. It is victim orientated, ie it is up to the victim to decide if

they are offended or not. Ie, if a woman is called a bitch or a cow it doesn’t

need to be compared to men’s put downs

 It is very subjective and looked at from the victim’s point of view

 IMPORTANT FOR EXAM – Watch for more than one act of discrim – eg

original act complained of and failure to investigate/prevent, if employer has

failed to investigate/prevent then it will be less favourable treatment which

will lead to discrim.

 If act by another employee – check vicarious liability, liability must be ‘in the

course of employment’. It does extend beyond the workplace ie at the office

xmas bash – can’t be too wide though. MUST put staff on notice before do’s

to defend harassment claims.

 In above scenario, V can bring in the e/ee as well as the e/er in case the e/er

has the defence and then V can pursue the e/ee directly

 If boss says stop being soppy, the victim can have a 2 nd D claim for

management not taking the complaint seriously and V could get more for

injured feelings

4

 Defence – employer took all reasonable steps to prevent discrim, ie

investigated complaints, tried to prevent act, had policy in place, had training

policy etc.

New Harassment laws –Reg 4 (Employment Framework Directive 2000/78)

 Relatively new at the moment so not much case law

 This is the test to use:

Defined offence for first time for race, religion and belief, sexual

harassment.

 “Unwanted conduct which has a purpose or effect of:

o violating dignity or

o creating an intimidating, hostile, degrading, humiliating or offensive

environment.”

 Interpretation: appears to be subjective criteria

o Reg 5(2): acts will be unlawful if ‘having regard to all circumstances,

including in particular the perception of the victim, it should

reasonably be considered as having that effect.’

INTENTIONS AND PRACTICES

  • Claim: artistic interpretation in our culture is constructive interpretation. How could the interpretation of social practices aim to discover anything like an author’s intention? (Remember: the objection argues that interpretation must be neutral and therefore that the interpreter must aim to discover someone else’s motives and purposes.)    What sense can we make of this in context of social interpretation? Two possibilities:
    • Social practice interpr = discovering purposes or intentions of other participants in the practice, like, e.g., citizens of courtesy.
      • But, social practice creates and assumes crucial distinction between interpreting acts and thoughts of participants one by one and interpreting practice itself. Important distinction because participations DO NOT always agree on best interpretation of practice.
    • Social practice interpr = discovering purposes of community that houses the practice.
  • So, remember, began discussion by objection that constructive account of creative interpretation wrong because creative interpr always conversational interpretation. That objection FAILS for interpretation of social practices even more dramatically than it fails for artistic interpretation.
  • Didn’t get this end of chapter too well (pg 65)

STAGES OF INTERPRETATION

  • Must now refine constructive interpretation into an instrument fir for study of law as social practice. Must be three stages of interpretation:
    • “Pre-interpretive” stage: where rules and standards taken to provide tentative content of the practice are identified (equivalent literary stage is where book is identified textually). Great degree of consensus needed here.
    • Interpretive stage: interpreter settles on some general justification for main elements of the practice identified at pre-interpretive stage, need not cover all, but enough.
    • Post-interpretive stage: one adjusts his sense of what practice “really” requires so as better to serve the justification he accepts at the interpretive stage.
  • Actual interpretation much less deliberate and structured than this analytical structure suggests, it would all happen at once in “seeing”.
  • What someone needs to interpret something:
    • Needs assumptions about what counts as part of the practice to define raw data (pre-interpretive). Members of same interpretive community must share roughly same assumptions about this.
    • Needs convictions about how far justification he proses at interpretive stage must fit the standing features of practice to count as interpretation of it rather than invention of something new.
    • Needs more substantive convictions about which kinds of justification really would show practice in best light, judgments about whether social ranks are desirable or deplorable, eg. the case agaisnt abogados de accidentes firm in Florida

Guest, Ronald Dworkin:

  • Descriptive statements come from observing empirically how things work. Normative statements tell us what “ought to be”. Interpretative statements are calculated to analyse something in the best light possible. Thus, unlike Hart (descriptive approach) and Kelsen (normative approach) Dworkin seeks to show law in its best light possible (interpretative approach). Dworkin’s interpretation says that the normal way to interpret something is to show it in its best light, even if this is not how the thing actually is. For example, he does not claim that interpreting the holocaust by looking at possible good intentions is the true interpretation. Merely that this is the normal paradigm of interpretation. What? This makes no sense. Dworkin is endorsing an interpretation that he claims is normal and at the same time inaccurate. Dworkin says that interpretation of law is different from interpretation of other areas. Why? Hence he says that the true interpretation of law is one that shows law in its best light (i.e. as embodying integrity).

 

  • On the criticism that many judges DO use policy to determine the outcome of a case, Guest points out too that many judges prefer principle, being cautious to leave policy discussions up to parliament. He also says that since Dworkin’s theory is one of “best light” interpretation and a rejection of descriptive approaches, it is no argument to say that Dworkin’s account doesn’t fit reality. To do so is to assume the correctness of descriptive legal philosophy of Hart. In which case what use is it in stating what constitutes a legal system and what law is? His brand of optimistic interpretation is departed from reality (e.g. the Hercules scenario) and should therefore be read as political philosophy in the same mould as “The rights of man” or “the Communist manifesto”. It is so far departed from reality that to claim he is “interpreting” is a false use of that word.

 

  • Guest recognises that Dworkin’s theory only works if the 4 values existing in an associative community exist (see nots on Law’s Empire).

https://books.google.co.uk/books/about/Ronald_Dworkin.html?id=ymhyyiS28lAC

Cotterrell Politics of Jurisprudence, Ch.6

  • Dworkin’s view is calculated to allow judges to protect the rights of individuals (which he sas are incorporated in rights) against majoritarian tranny.
  • Says Dworkin is right that there is no room in common law for strong judicial discretion as the court’s purpose may be creative but is not legislative. Wrong: If two competing principles are at work then the judge can still decide between them in any way he likes and where the principles are broad then the discretion/ability to make law will be broad too.
  • Dworkin explains constructive interpretation by analogy to a writer continuing a story that was started by earlier writers. The style and storyline must fit, but within the possible options that fit he must select the best option.
  • Dworkin argues that “community” is the basis of law. However Dworkin doesn’t say what community actually is or why law should be seen as an expression of community values (especially since judges are NOT delegates of majority will- in fact to suggest this would be contrary to what Dworkin himself believes). Dworkin only uses an internal perspective which prevents us from answering these questions.
  • Dworkin says that because the law is based in community, all participants of the community who accept its basic values of integrity etc are as entitled to interpret the law as judges. Therefore people are entitled to act according to his own considered and reasonable view of the law, since community members are duty bound to obey the true interpretation of the law, not one person’s or one judge’s interpretation of it. This is the basis for civil disobedience. This is retarded. Seriously retarded. (1) Who will determine anarchy? Not the courts since clearly Dworkin sees them as having no more right to interpret the law than anyone else, such as the person who refuses to comply with their interpretation. (2) This would lead to anarchy- nobody would follow laws which they considered not to have “integrity”. (3) IT DOESN’T REALLY HAPPEN and is therefore invalid as a description of our system- people DO follow court orders even when they think the court has got it wrong. Submitting to court decisions is not voluntary.

Book review of Taking Rights Seriously; Haworth:

  • Dworkin says rights are legal trumps. This is in contrast to utilitarianism and he sees rights as a way of restraining the state. This is because rights guarantee integrity i.e. they allow a person to be treated with equal respect concern as anyone else. However Dworkin is wrong to say that this distinguishes him from the positivists as Hart himself does not purport to be utilitarian. Positivism does not say that rights should not be enshrined in law, or even that secondary rules shouldn’t enshrine them: he merely says that this doesn’t happen automatically (arguably Hart is coming from the perspective of saying what law is, whereas Dworkin is saying what law ought to be in order to allow rights to be supreme.)
  • Equal right to respect and concern does not fulfil the idea that taking rights seriously is contrasted with utilitarianism. Utilitarianism may view welfare in the long run as being maximised by observing the right to equal concern and respect. Utilitarianism makes calculations based on the suffering of each individual and so it needs to do what Dworkin is saying. Really? What about where we are prepared to make a minority suffer a certain amount in order to greatly improve the welfare of the majority, e.g. Heathrow 3rd Haworth is wrong to claim that Dworkin’s position and utilitarianism are the same.