HUMBERSIDE & SOUTH YORKSHIRE POLICE SENIOR OFFICER TRAINING 7 DECEMBER 2012 ‘EMPLOYMENT TRIBUNAL PROCEEDINGS’ BY JAMES ARNOLD BARRISTER

Introduction Key concepts in discrimination law The Equality Act 2010 Protected characteristics Types of claim in the employment tribunal Whistleblowing A brief overview on protected disclosures Case study The Employment Tribunal Process Cross-examination exercise

The Equality Act 2010 Equal Pay Act 1970 Sex Discrimination Act 1975 Race Relations Act 1976 Disability Discrimination Act 1995 Employment Equality (Religion or Belief) Regulations 2003 Employment Equality (Sexual Orientation) Regulations 2003 Employment Equality (Age) Regulations 2006

Protected characteristics Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion or belief Sex (gender) Sexual orientation

Age Particular age group Age group Particular age Range of ages Over 50s / 21 year olds / people in their forties

Disability Physical or mental impairment Long-term Substantial adverse effect Ability to carry out normal day-to-day activities

GENDER REASSIGNMENT Proposing to undergo (or has undergone) A process (or part of a process) which is undertaken under medical supervision Not required to undergo medical treatment Other attributes of sex Transvestism?

Marriage & civil partnership Currently married or have civil partnership status No protection for people who are: Single Co-habiting Widowed Divorced About to be married

Pregnancy & maternity Protected period Unfavourable treatment Pregnancy / illness / maternity leave Decision taken during the protected period

Race Non-exhaustive list: Colour Nationality Ethnic origins National origins

Religion or belief Religion or lack of religion Buddhism, Christianity, Hinduism, Islam & Judaism Druidism, Voodoo, Witchcraft? Atheism, agnostics Belief or lack of belief The test Pacifism, Environmental, Socialism, Marxism, Darwinism Political belief?

Sex (gender) Limited to gender only Physiology of being male or female

Sexual orientation Homosexuals Gay males (and lesbians) Bisexuals (Male and female) Heterosexuals ‘Straight’ males and female

Direct discrimination Less favourable treatment Because of a protected characteristic Actual / hypothetical comparator Association / perception

Indirect discrimination Provision, criterion or practice Applied equally Particular disadvantage to a group with a protected characteristic Disadvantage cannot be shown to be a proportionate means of achieving a legitimate aim

Harassment Unwanted conduct Related to a protected characteristic Purpose or effect of: Violating a person’s dignity; or Creates an intimidating, degrading, humiliating or offensive environment Reasonable for the conduct to have that effect?

Victimisation Retribution Protected act Issue an employment tribunal claim Make an allegation of discrimination Give evidence or information in connection with proceedings Doing any other thing for the purposes of the Act Subjected to a detriment

Disability discirmination Discrimination arising from a disability Unjustified unfavourable treatment of a disabled person because of something arising in consequence of their disability Failure to make reasonable adjustments Provision, criterion or practice places the disabled person at a substantial disadvantage compared to a non-disabled employee Duty to take reasonable steps to remove that disadvantage

Whistle-blowing Protected disclosure under the Employment Rights Act 1996: Disclosure of information Reasonable belief Tends to show: Criminal offence Failure to comply with a legal obligation Miscarriage of justice Health and safety Environmental damage Deliberate concealment Good faith

Detriment What is a detriment? Reasonably disadvantaged Posting / lack of promotion / dismissal Causation Detriment other than dismissal Dismissal

Case Study See Appendix 1 2 problems George the police helicopter pilot Maria the response driver 20 mins ‘break out’ Discussion on results

The Employment Tribunal process Claim ET1 and Particulars of Complaint Response ET3 and Grounds of Resistance Request for Additional Information Statutory Questionnaire Adverse inference

Case Management Discussion Discuss ways to manage the case Identification of issues Directions: Disclosure and inspection of documents Expert reports Preparation of trial bundles Exchange of witness statements Trial date and duration

Pre-hearing Review Preliminary hearing Decide a preliminary issue Employee? Disabled? Strike out a claim that has no reasonable prospect of success Order a deposit for a claim that has little reasonable prospect Jurisdiction

Substantive hearing Composition of tribunal Role of the advocate Process at the hearing: Housekeeping Examination-in-chief / Cross-examination / Re-examination Questions from the Tribunal Closing submissions Deliberations

Remedy hearing Declaration Compensation Recommendation Costs

Review & appeal Review of the Tribunal’s decision by the Tribunal Appeal on error of law: Employment Appeal Tribunal (‘EAT’) Court of Appeal Supreme Court European Court of Justice (‘ECJ’)

Cross-examination excercise PS Michael Tyson v Chief Constable of Riverdale Police Disability discrimination claim: Failure to make reasonable adjustments

Conclusions Plenary session Questions? Conclusions Overview of the law on discrimination Demonstrated the scope of employment tribunal claims Examination of process THANK YOU FOR LISTENING