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

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 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.’

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