Discrimination at Workplace Case Study

The given case study involves a brewery where discrimination by association has taken place. Dave, who applied for the head brewer job but was not selected due to being from a different ethnic background than the successful candidate James. Preeti also made racist jokes and used abusive words towards her colleagues. This assignment will analyze potential liabilities against each individual involved in this case, including Dave, Steve (another applicant), and Preeti. The Equality Act 2010 will be referenced throughout the analysis to determine whether or not discrimination has taken place and what actions should be taken accordingly.

Running head: BUSINESS AND EMPLOYMENT LAW
Business and Employment Law
Name of the Student
Name of the University
Author Note

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Table of Contents
Answer 1..........................................................................................................................................2
Issue 1..............................................................................................................................................2
Legal Rules.......................................................................................................................................2
Application.......................................................................................................................................5
Conclusion........................................................................................................................................6
Issue 2..............................................................................................................................................7
Legal Rules.......................................................................................................................................7
Application.......................................................................................................................................9
Conclusion......................................................................................................................................10
References.....................................................................................................................................12

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Answer 1
Issue 1
Whether MB is liable to Olaf for Unfair dismissal
Legal Rules
According to section 94(1) of the Employment Rights Act [ERA] 1996, an employee is
entitled not to be unfairly dismissed by his or her employer1. In order to be entitled to this right,
an employee must satisfy the following eligibility criteria:
a) the person must be an employee,
b) the person must have been employed for two or more years,
c) the person must establish that he had been dismissed.
Dismissal under the ERA 1996 can be categorized into automatically unfair reasons,
automatically fair reasons and potentially fair reasons. Automatically fair reasons imply that the
employee has been dismissed on the grounds of unofficial strike action or national security
reasons. The manner in which the employer has handled the situation shall not be taken into
account. In case employees claim to have been dismissed for unfair reasons, the employees
must establish that are employees and have been working as one for more than 2 years and
have been dismissed on unfair grounds. The employees must establish that he or she has been
terminated by the employer with or without notice under section 95(1) of ERA 19962.
1 Employment Rights Act [ERA] 1996 at section [94(1)].
2 Employment Rights Act [ERA] 1996 at section [95(1)].

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After satisfying the criteria stipulated under section [95] of the ERA, the employers
becomes responsible to establish that the reason for dismissing the employee falls within the
prima facie fair grounds for dismissal as stipulated under section [98] of the ERA 1996. The
tribunal shall determine whether the employer has acted reasonably in considering the ground
for dismissal as a sufficient reason to dismiss an employee under section [98(4)] of the Act3. In
order to determine the reasonability of the ground of dismissal, the court shall apply the Range
of Reasonable Responses test as held in Iceland Frozen Foods Ltd v jones [1983]4.
The grounds stipulated under section [98(2)] of the ERA Act, which are considered as fair
grounds to dismiss any employee, include:
i. Conduct
ii. Capability or Qualifications
iii. contravention of an enactment
iv. redundancy
v. SOSR (section 98(1)(b))
Dismissal of an employee on the ground of gross misconduct is common as misconduct is
considered as one of the fair reasons for dismissal stipulated under section [98] of the
Employment Rights Act 1996. In British Home Stores v Burchell [1978]5, the court held that
while determining whether a dismissal for misconduct is fair or unfair, the court shall apply the
Burchell test. In order to establish that dismissal on grounds of misconduct is a fair reason, the
employers are required to satisfy that:
3 Employment Rights Act [ERA] 1996 at section [98(4)].
4 Iceland Frozen Foods Ltd v jones [1983] ICR 17
5 British Home Stores v Burchell [1978] IRLR 379

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a) the employer believed that the employee was guilty of misconduct;
b) the employer had reasonable ground to believe that the employee had been guilty of
misconduct;
c) that the employer had carried out reasonable investigation at the time when he or she
believed that the employee was guilty of misconduct;
The tribunal must also determine whether the decision of the employer to dismiss the
employee fell within the range of responses to the misconduct on part of the employer was
reasonable enough that any other prudent employer would have adopted similar responses
under such circumstances. In regards to the reputation of the dismissed employee, the
employer must establish that he has considered all the options available prior to dismissing the
employee as was held in Baker v Securicor Omega Express [2000]6.
In order to determine whether the conduct of the employee amounted to gross
misconduct, the behavior of the employee must be so serious that it leads to dismissal without
former notice or warnings. The tribunal should also have regards to the fact whether the
conduct of the employees amounted to gross negligence or deliberate wrongdoing and that
whether the employer acted reasonably in considering such conduct as a gross misconduct. In
Fuller v The London Borough of Brent [2011]7, the Employment tribunal held that the
investigation against the dismissed employee was unjustified, as no prudent employer would
have dismissed an employee based on one incident.
6 Baker v Securicor Omega Express [2000] IRLB 633 EAT
7 Fuller v The London Borough of Brent [2011] EWCA Civ 267

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As per the ACAS Code, the employer is required to investigate the issue and inform the
employee in writing to attend a meeting regarding the disciplinary procedures. The employee
has a right to be accompanied and has a right to appeal against the decision made. The conduct
of grievance procedures is implied and it must allow the employees to raise their issues in a
confidential environment. Grievance must be dealt with timely and employee must be satisfied
that the issue has been discussed, in case of failure, giving the employee an opportunity to
approach higher authority. The non-compliance with the ACAS Code of Dismissal; Grievance
procedure, shall render the dismissal unfair if the employer is at fault under section 98(1) of the
ERA 1996. The employee shall be entitled to compensatory award that can be reduced or
increased to 10-50 percent. The other remedies available include re-engagement, re-
instatement, compensation, etc.
Application
In the given scenario, Olaf shall be entitled to the right not to be dismissed unfairly under
section 94(1) of the ERA 1996 as he was the employee of Mildam Brewery (MB) for 15 years
and that his line manager Preeti had dismissed him. However, it is the responsibility of MB to
establish that such dismissal was based on the ground of misconduct, which is a fair ground of
dismissal under section 98(2) of the Act.
In order to determine whether the dismissal of Olaf is fair, Buchell’s test or the reasonable
responses test can be applied according to which the employer must establish that the
company believed Olaf was guilty for willful misconduct and it had reasonable ground to

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believe he had committed misconduct. The company must establish that it carried out
investigation from the moment it believed that Olaf committed misconduct.
Olaf had been engaged in heated discussions with Preeti since she has joined stating that
she was interfering with his job. Olaf is always reluctant to follow instructions given by Preeti
but ultimately follows them. Olaf even swore at Preeti and misbehaved with her. Olaf, although
an expert in making beer but he was not good at running business still he argued and engaged
in misbehavior with Preeti regarding undertaking certain changes in the company.
As per the ACAS Code on grievance procedures, Olaf was notified to attend a meeting
and he may bring union representative or a work colleague along with him in the meeting. He
was warned to apologize else, he would be dismissed prior to the meeting. Olaf was also given
chance to respond but he kept stating that Preeti was interfering with his work. This implies
that the behavior of Olaf was, though, serious to lead to dismissal but he was warned about it
before, as well.
Conclusion
The company is liable for dismissing Olaf, as the company did not attempt to undertake
all other options before dismissing Olaf. Olaf has been in the company for years and was an
expert in making beer. The company failed to allow Olaf to raise his issues in a confidential
environment right from the moment it started. Grievance must be dealt with in a timely way
but the heated arguments carried on for three months without being resolved. Further, the
company did not even allow him to approach higher authority for resolution of the issues. As
was held in Baker’s case, the company did not consider all the options that were available to

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resolve the issue. As was held in Fuller’s case, there were no justified investigation carried out
regarding the issues and no prudent employer would have dismissed the employee under same
circumstances. Hence, the company shall be entitled to compensate Olaf with compensatory
award or reinstate/re-engage him in the company.
Issue 2
i) Whether MB shall be held liable under Equality Act 2010 against
a) Dave
b) Steve
c) Preeti
ii) What are potential remedies available to MB against any liabilities
Legal Rules
According to section [39(1)] and section [39(2)] of the Equality Act 2010, discrimination
in employment has been stipulated8. The statute identifies nine protected characteristics under
section [4] of the Act, which includes disability, Gender re-assignment, age, Marriage and civil
partnership, Race, Pregnancy and maternity, Religion or belief, sexual orientation and sex.
Discrimination is described as ‘prohibited conduct’ in the Equality Act 2010. Discrimination at
workplace can be categorized in the following four forms:
i. direct discrimination under section 13,
ii. Indirect discrimination under section 19,
8 Equality Act 2010 at section [39(1)] and [39(2)].

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iii. victimization under section 27,
iv. harassment under section 26.
Direct discrimination under section 13 of the Act refers to a less favorable treatment
towards certain employee or group of employees based on the ground of protected
characteristics. Discrimination by association is also included within the definition of direct
discrimination under section 13 of the Act9.
Discrimination at workplace on the ground of Association with someone who shares the
characteristic has been is unlawful as was held in Showboat Entertainment Centre Ltd. v Owen
[1984]10 and Weathersfield Ltd v Sargent [1998]11. The concept of discrimination by association
has been incorporated into the UK legislation subsequent to the landmark decision of ECJ in
Coleman v Attridge Law [2009]12.
In order to defend the discriminatory conduct exhibited by the employer, he or she may
provide a justification on the grounds stipulated under Schedule 9 of the Equality Act 2010. The
grounds of justification include:
a) proportionate means of attaining a legal aim,
b) personal characteristics,
c) occupational requirement that is essential as per the nature of the job,
d) personal service – victims of rape;
e) Personal characteristics- authenticity in acting.
9 Equality Act 2010 at section [13]
10Showboat Entertainment Centre Ltd. v Owen [1984]
11Weathersfield Ltd v Sargent [1998] IRLR 94
12Coleman v Attridge Law [2009] 1 CMLR 28.

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Positive discrimination refers to the treatment towards a person mostly because of the
protected characteristics that is under-represented at workplace. Disability being the only
exception, positive discrimination amounts to direct discrimination against others on the
ground of different characteristics, which is unlawful.
According to section [136] of the Equality Act 2010, the provision is applicable in case of
violation of the Act.13 If the primary facts of the case signifies that some form of discrimination
has taken place, the onus of proof shifts upon the employer who is required to establish that
discrimination did not take place at workplace as is held in Igen Ltd and others v Wong and
other cases [2005]14.
In case of discrimination at interview stage, the person who feels have been discriminated
by not providing the job may serve upon the employer a discrimination questionnaire under the
Equality Act 2010, which will deal with the employer about their treatment. A questionnaire is
useful when the job interviewee is not certain about the grounds on which he has not been
offered the job and need to obtain information from the employer.
Application
a) Potential liability against Dave
In the given case, Dave applied for the job of head brewer. He was the most qualified
candidate for the job as he had educational qualification as well as practical experience that
was appropriate for the job. However, he was not selected for the job but James was selected
13 Equality Act 2010 at section [136]
14 Igen Ltd and others v Wong and other cases [2005] EWCA Civ 142

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who merely had technical and practical experience in large brewery because Preeti appointed
him on the grounds of race. This amounts to Discrimination by association under Section 13 of
the Equality Act 2010, which is included in direct discrimination.
b) Potential liabilities against Steve
Steve had educational qualification until secondary school and had 3 years experience in
large brewery. The company may use the defense that he was not qualified for the job post as
James possessed college degree and had technical education.
c) Potential Liabilities against Preeti
The workers have been making racist jokes about Preeti’s ethnic background and used
abusive words for her that was written on the brewery wall near her car. This amounts to direct
discrimination on the grounds of race, which is unlawful, and the company is liable to take
effective steps to prevent discrimination at workplace based on the nine protected
characteristics, which includes race and take disciplinary or legal actions against any person
who commits the same within the workplace.
Conclusion
In case of Dave, MB may use the defense that Jams was selected over Dave because he
qualified for the post which in reality, shall not be considered as a valid defense. Dave may
serve a discrimination questionnaire upon the company to be certain that the company has
practiced discrimination.

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In case of James, the company may not be liable as James was not qualified for the post
compared to the other applicants and his non-selection is justified.
In Preeti’s case, she is liable for committing discrimination with Association while
interviewing Dave, Steve and James. James was also not qualified for the post and was for
belonging to same ethnic background. She is also liable for committing direct discrimination
under the Equality Act 2010, which may result in disciplinary proceedings including her
termination as was held in Showboat Entertainment’s case.

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References
Baker v Securicor Omega Express [2000] IRLB 633 EAT
British Home Stores v Burchell [1978] IRLR 379
Coleman v Attridge Law [2009] 1 CMLR 28.
Employment Rights Act [ERA] 1996 at section [94(1)].
Equality Act 2010
Fuller v The London Borough of Brent [2011] EWCA Civ 267
Iceland Frozen Foods Ltd v jones [1983] ICR 17
Igen Ltd and others v Wong and other cases [2005] EWCA Civ 142
Showboat Entertainment Centre Ltd. v Owen [1984]
Weathersfield Ltd v Sargent [1998] IRLR 94