And suddenly there was a defence...

[heisenberg]

Re: And suddenly there was a defence...

Equality Act is based on EU law...ie principle of proportionality and legitimate aim to defend discrimination

Agreed. I think the case of Akerman-Livingstone v Aster Communities Ltd the matter of proportionality/justification was a point of appeal.

[heisenberg]

Re: And suddenly there was a defence...

i couldn't tell whether it as an employment discrim. or other discrimination claim

I think the fact that it is issued at a County Court would give you some clue. :tinysmile_twink_t2:

[Openlaw15]

Re: And suddenly there was a defence...

I think, for the most part, that is what I have done here? I think specific details relating to remedy need to be dealt with in a witness statement when awarding compensation?

i couldn't tell whether it as an employment discrim. or other discrimination claim

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i couldn't tell whether it as an employment discrim. or other discrimination claim

Equality Act is based on EU law...ie principle of proportionality and legitimate aim to defend discrimination

[heisenberg]

Re: And suddenly there was a defence...

Four-stage structured approach

To rely on the 'objective justification' defence, the employer or service provider etc must show that its unfavourable treatment of the disabled person was a 'proportionate means of achieving a legitimate aim'.
The Supreme Court in Akerman-Livingstone v Aster Communities Ltd (link to bailii.org), 2015, laid down a four-stage structured approach for this:

1. Is the objective sufficiently important to justify limiting a fundamental right? Elsewhere it has been said the aim must represent a 'real, objective consideration' which is not itself discriminatory (Statutory EqA Employment Code, below), and the employer etc must have a 'real need' (Allonby and Elias cases below).
2. Is the measure rationally connected to the objective?
3. Are the means chosen no more than is necessary to accomplish the objective? Could alternative measures have met the legitimate aim, without such a discriminatory effect? If proportionate alternative steps could have been taken, the unfavourable treatment is unlikely to be justified. One consequence of this is that if reasonable adjustments could have been made instead, it will normally be difficult to show justification.
4. The disadvantage caused to the claimant must not be disproportionate to the aims pursued. So it is not enough that there is a legitimate aim and the means used are necessary to achieve it. There are situations in which the the ends, however meritorious, cannot justify the only means which is capable of achieving them. It seems from the Akerman judgments that on a s.15 claim one looks at the disadvantage caused to the particular claimant. (On a claim for indirect discrimination it may be a group test, ie. one looks at the disadvantage to people with that disability.)

There is a balancing exercise. Was the aim sufficiently important? Could the aim have been achieved by less discriminatory means? Does the legitimate aim outweigh the discriminatory effects of the unfavourable treatment?
Whether there was objective justification is a matter for the tribunal. The tribunal is not limited to considering whether a reasonable employer or service provider etc might have considered it justified (below: Objective assessment by tribunal).
The burden is on the employer or service provider etc to show that the unfavourable treatment was objectively justified.

http://www.stammeringlaw.org.uk/disc...tification.htm

Oh, I see. Yes, that may be helpful in terms of justification for the treatment however I was seeking guidance on the interpretation of section 15(1)(a) of the Equality Act 2010 i.e. to what extend the unfavourable treatment and disability can be connected.

[charitynjw]

Re: And suddenly there was a defence...

Thanks. I am not sure if I cited this a while back.

Which paras contain the 4-point test?

Seems like that fellow and I share a few things in common though I don't think there is a principle that applies to my current case unless someone here believes otherwise...

Four-stage structured approach

To rely on the 'objective justification' defence, the employer or service provider etc must show that its unfavourable treatment of the disabled person was a 'proportionate means of achieving a legitimate aim'.
The Supreme Court in Akerman-Livingstone v Aster Communities Ltd (link to bailii.org), 2015, laid down a four-stage structured approach for this:

1. Is the objective sufficiently important to justify limiting a fundamental right? Elsewhere it has been said the aim must represent a 'real, objective consideration' which is not itself discriminatory (Statutory EqA Employment Code, below), and the employer etc must have a 'real need' (Allonby and Elias cases below).
2. Is the measure rationally connected to the objective?
3. Are the means chosen no more than is necessary to accomplish the objective? Could alternative measures have met the legitimate aim, without such a discriminatory effect? If proportionate alternative steps could have been taken, the unfavourable treatment is unlikely to be justified. One consequence of this is that if reasonable adjustments could have been made instead, it will normally be difficult to show justification.
4. The disadvantage caused to the claimant must not be disproportionate to the aims pursued. So it is not enough that there is a legitimate aim and the means used are necessary to achieve it. There are situations in which the the ends, however meritorious, cannot justify the only means which is capable of achieving them. It seems from the Akerman judgments that on a s.15 claim one looks at the disadvantage caused to the particular claimant. (On a claim for indirect discrimination it may be a group test, ie. one looks at the disadvantage to people with that disability.)

There is a balancing exercise. Was the aim sufficiently important? Could the aim have been achieved by less discriminatory means? Does the legitimate aim outweigh the discriminatory effects of the unfavourable treatment?
Whether there was objective justification is a matter for the tribunal. The tribunal is not limited to considering whether a reasonable employer or service provider etc might have considered it justified (below: Objective assessment by tribunal).
The burden is on the employer or service provider etc to show that the unfavourable treatment was objectively justified.

http://www.stammeringlaw.org.uk/disc...tification.htm

[heisenberg]

Re: And suddenly there was a defence...

You won in the first instance and now they are applying for set aside how much money was awarded in the case is it enough to warrant fighting them I am no expert but discrimination compensation must be very hard to assess in monetary terms.

Sorry wales01man, I never realised you were putting a question to me. I think this claim is valued at around £5k to £10k. It may have been worth issuing bearing in mind this organisation never responded to my pre-action letter.

I am beginning to think that a lot of the these claims simply aren't worth the grief though I have had some success in the past.

[heisenberg]

Re: And suddenly there was a defence...

4-point test
http://www.bailii.org/uk/cases/UKSC/2015/15.html

Thanks. I am not sure if I cited this a while back.

Which paras contain the 4-point test?

Seems like that fellow and I share a few things in common though I don't think there is a principle that applies to my current case unless someone here believes otherwise...

[wales01man]

Re: And suddenly there was a defence...

No answer to my question from earlier?

[charitynjw]

Re: And suddenly there was a defence...

Indeed.

I have searched high and low for case law on section 15 of the Equality Act 2010 but have found none that is binding on a County Court so interpretation (narrow or broad) remains unclear.

4-point test
http://www.bailii.org/uk/cases/UKSC/2015/15.html

[heisenberg]

Re: And suddenly there was a defence...

When you're writing to the courts you need to introduce/ outline your complaint, its nature, recommended remedies in the first paragraph to keep their interest. If it is direct discrimination outline what, when, where, how. How are you affected, what can the defendant do to remedy your situation. Then explain and keep to these points throughout, keep it short as possible and use concise language throughout. Then give a little summary.

I think, for the most part, that is what I have done here? I think specific details relating to remedy need to be dealt with in a witness statement when awarding compensation?

[heisenberg]

Re: And suddenly there was a defence...

I believe the test for discrim is 'I would not have been treated that way but for my protected characteristic'

(Not quite that simplistic, but it's a starting point.)

Indeed.

I have searched high and low for case law on section 15 of the Equality Act 2010 but have found none that is binding on a County Court so interpretation (narrow or broad) remains unclear.

[heisenberg]

Re: And suddenly there was a defence...

Or was it this one? http://legalbeagles.info/forums/show...449#post582449

That was another matter. I sense that I was discriminated against there but due to the stresses and demands of other matters it seems I am unlikely to issue a claim. I am also worried that I may be out of time on that one.

[charitynjw]

Re: And suddenly there was a defence...

I believe the test for discrim is 'I would not have been treated that way but for my protected characteristic'

(Not quite that simplistic, but it's a starting point.)

[heisenberg]

Re: And suddenly there was a defence...

I'm concerned that you appear to have come to quite a few conclusions based on insufficient facts.

In the simplest terms; it's not enough to say, 'I have a disability- I wanted more- you didn't give me more- therefore you discriminated against me.

For example, reasonable adjustments; what is the PCP that puts you at a substantial disadvantage?
It seems to be that they have a practice of insufficient engagement and communication.
But, what you've written contradicts that. When you consider that many complaints would go, complaint letter- response- end, I suggest that you've had a great deal more than usual.
Do you have evidence that proves otherwise?
When it comes to the provision of information, reasonable adjustments usually focus on providing it in an accessible format e.g. braille, large print, voice recordings.

Thanks mariefab.

Further to post #74, I think a PCP should be interpreted broadly. What you have referred to are indeed the classic reasonable adjustments. I appreciate than when we are dealing with mental health problems this is not always clear and straightforward.

I have further concluded that aspects of my complaint(s) have not been dealt with in the manner you suggest.

[heisenberg]

Re: And suddenly there was a defence...

Reading through that you haven't made clear what it is that they did that you were complaining about that caused the equality / discrimination issue.

I believe, from previous posts, it was the physiotherapist passing on information from your consultation to your GP ?

Thanks Amethyst.

First and foremost, I think this organisation (the Defendant) bent over backwards and then some for the psychotherapist whom I believe discriminated against me. The PHSO have found that I was treated unfairly. To that end and in failing to be reasonably clear why the Defendant could not even issue a warning. this lends itself to the inference that they could be unlawfully assisting this person.

Further, I have some evidence that the PSA concluded that they did not make a fair decision in this case regardless of my failed and fruitless engagements with them.

I believe the term 'practice, policy or procedure' should be interpreted broadly.

Again, if they had responded to the pre-action letter (and indeed all other correspondence) elements of my claim would not have been as speculative.