Adult dating,ghost profiles and law

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Law and Free speech

In her article”WHEN LAW MOVES QUICKER THAN CULTURE: KEY

JURISPRUDENTIAL REGULATIONS SHAPING THE US ADULT CONTENT PRODUCTION INDUSTRY ,“Dr. Chauntelle Tibbels argues that relevant legal proceedings occurring during three eras of U.S. adult content production and distribution show pornography’s evolution from clandestine enterprise to legal, protected free speech. This evolution parallels the development of an

adult content production industry in California. And although two recent obscenity-related adult content production, sales, and distribution convictions have occurred, these cases were related to exceptional material

that violated the Cambria List guidelines.The vast majority of adult content produced since the Miller decision is not obscene; consequently, in this respect, the adult content production industry is a legal

legitimate space working to meet consumer demands with a legal legitimate  product.

“ It is important to note that instances of anti-pornography rhetoric, organizing, and activism occurring in wider U.S. culture are almost endless, as are instances of discrimination against persons currently or formerly involved in adult

content production.”

“What is more, one could argue that the specific cases discussed in this essay are themselves just additional indicators of

cultural discord related to adult content and adult content production.

The question then remains—why? Why, in spite of its legal and protected status, are adult content and adult content production still stigmatizing and polarizing dimensions of U.S. culture?” Relevant case law regarding obscenity engaged in conjunction with historical sociological considerations of cultural attitudes about adult entertainment

point to legal findings that outpace sociocultural evolutions Wider U.S. culture continues to struggle with pornography; however, in terms of obscenity, U.S. law does not. Legal proceedings cleared the way for adult content production and industry development, not legislation or voter sentiment.

“Members of the adult entertainment community were only able to establishlegal footholds within the context of greater U.S. culture by fighting back when attacked, demanding First and Fourth Amendment  rights.”

“ And, in spite of continued stigma and marginalization, the adultentertainment industry as a whole acts as a protective sentinel for every individual’s right to free expression. “

“In terms of adult content producers’ civil rights, however, law has moved much more quickly than culture. Though considerations of continued discrimination against pornography and adult content production are extremely troubling, in a society that continues to marginalize queer persons and the socio-economically disadvantaged (among so many others), marginalization is not exactly surprising.”

Forensics and the law

Cyril H. Wecht. Mortal Evidence: The Forensics Behind Nine Shocking  www.Amazon.com (kindle edition) 
Forensic pathology investigates a small proportion of deaths whose cause is difficult to determine. According to the author there is a body of clues that can help solve the mystery of not only how a person died, but also how long ago, and in some cases of murder, by whose hand. "Pinpoint bleeding" on the inside of an individual's lower eyelids can be a sign of strangulation. Frothy fluid in the lungs may suggest a drug overdose death in a young adult who shows no signs of heart disease. Those details are critical to a forensic pathologist as he tries to determine the circumstances surrounding a death. After all, the field of forensic pathology is focused on delving into deaths that are violent, suspicious, sudden, unexplained, unexpected, or medically unattended. The forensics behind cases nine shocking cases including the O.J Simpson trial,casino magnate Ted Binion's case and the Sam sheppard trial are examined in great deal. However,the author admits that there some deaths whose cause remain a mystery. This book would be interesting for crime fiction writers and those interested in the role of expert evidence inthe legal process

Financial Assisance

The general prohibition against the provision of financial assistance is based on the case of Trevor and Whitworth(1887) where it was established that a company limited by shares could not buy its own shares since this would amount to a reduction in the company’s capital.

Trevor and Whitworth established the principle that returning capital to members must be approved by the courts as a means of protecting creditors of the company.(s658(1) CA2006)

However, a limited liability company may acquire its own shares if it is in accordance with the statutory provisions of CA 2006,part 18.In other words, redemption in accordance with ss684-689 or purchase under ss690-737.

Financial assistance is defined broadly to cover a variety of transactions including, financial assistance by way of a gift, guarantee security or indemnity, release, or waiver or a loan and so on, all of which are listed in in the provisions on financial assistance in 677(1) CA 2006.The condition is that the transaction be of the type mentioned and amount to financial assistance.

Firstly, financial assistance is prohibited where it is given by a public company or any of its subsidiaries for the acquisition of its own shares.(s.678CA06)

Secondly, it is unlawful where it is given for the acquisition of a private company’s shares by any subsidiary of a private company which is a public company.(s.679CA06).The current rule against it is outlined in s680 CA06 . Owing to difficulties in the implementation of the Second EC Law Directive with respective to public companies, a company law review of the statutory provisions(ss151-158CA1985) recommended that the provisions on financial should not apply to private companies which have been adopted in ss 677-683 CA2006.

Although the provision on the giving of financial assistance have been repealed, the broader protective rules on distribution and reduction of capital as well as the common law principle(Trevor and Whitworth) still remain. As Arden LJ states in Chaston v SWP Group plc(2003)¹ 1 BCLC 675 at 689,there is no requirement of detriment with regard to these elements.

Financial assistance given by a company for the purchase of its shares can arise in many circumstances including the acquisition of a company by a bidder who borrows to fund the acquisition and then uses the company’s assets once control has been secured to repay the funding According to Arden LJ in Chaston v SWP Group plc “ the mischief remains the same, namely the resources of the target company and its subsidiaries should not be used directly or indirectly to assist the purchaser.”

The consequences of breach are both criminal and civil. A company and officer in default is liable to a fine and/or two years imprisonment.(s680CA06)

Transactions leading to a reduction in net assets of the company which cannot be covered by distributable resources will be caught by the rules against financial assistance.

Thus in Heald v O’Connor (1971)² 1 WLR 497 it was held that lending cash to a buyer of their company which was secured by a floating charge over the companies assets amounted to financial assistance for the purchase of the company’s shares which was unlawful and void.’

In Acatos and Hutheson plc v Watson(1995)³ it was held that it was lawful for Watson’s company to buy the assets of the sole asset holder in Acatos Ltd and that doing so did not infringe the rule in Trevor and Whitworth against a company acquiring or dealing in its own shares .While in Steen v Law (1964)⁴ it was held that advancing a loan to a private company which was a subsidiary of the target company by the appellants for the acquisition of shares in their company amounted to unlawful financial assistance.

The potential scope of the prohibition is wide but the courts tend to look at the transaction as a whole. Hoffmann J noted in Charterhouse Investment Trust v Tempest Diesels Ltd(1996)⁵ in it is the commercial realities that are essential in deciding whether or not a transaction amounts to financial assistance. In addition, to the assistance being financial assistance, the assistance must be given for the purpose of the acquisition or to reduce or discharge a liability incurred for the purpose of the acquisition.

The law recognises two types of financial assistance, namely contemporaneous financial assistance and subsequent financial assistance.s678(1) CA2006 covers the former while

S678(3) CA 2006 covers the latter.In Belmont Finance Corp Ltd v Williams Furniture Ltd (1979)⁶ it was held that the principal purpose of the transaction was to provide the defendant company with funds to acquire the plaintiff company which breached s.678(1).

In addition, where a person is acquiring or proposing to acquire shares in a private company,it is unlawful for a public company that is subsidiary of that company to give financial assistance for the purpose of that acquisition s679(1) CA2006 or to give financial assistance for the purpose of reducing or discharging a liability incurred for the purpose of making the acquisition.

One exception is that the law does not prohibit a subsidiary which is a foreign Company from giving assistance for the acquisition of shares in its holding company,s679(3).

In Arab Bank v Mercantile Holdings Ltd(1994)⁷ Millett J held that s151 CA 1985 did not prohibit a subsidiary from giving financial assistance for the acquisition of shares in its English parent company.

Even where the assistance is given for the purpose of the acquisition, the prohibition

would not apply if the company’s principal purpose in giving the assistance is not for the purpose of making any such acquisition or the giving of the assistance for that purpose is incidental to a larger purpose and that the assistance is given in good faith in the interests of the company. The larger purpose exceptions are outlined in ss678(2) (4) and 679(2)(4) CA06 .A breach of the provisions is a criminal offence.ss680(2)CA06.

The conditional and unconditional exceptions to the rule are outlined in ss681 and 682CA 06 respectively. The conditional exceptions are that either the company giving financial assistance(f/a) is a private one or if public the net assets are not reduced by the giving of f/a or the assistance is provided out of distributable profits. The unconditional exceptions include dividends lawfully made, bonus shares, reduction of capital under s641, redemption under s684 or purchase of shares under s.690.

The scope of the larger purpose defence has been reduced by the House of Lords decision in Brady v Brady(1989)⁸ where it rejected the decision of the High court and court of Appeal that financial assistance as part of a larger company reorganization to resolve the conflict between two brothers who controlled it and avert the imminent liquidation of the company fell within the exception. It stressed that the larger purpose must be something more than why the transaction was entered into.The transaction did not fall within the larger purpose exemption but

specific performance was granted as it fell within the private company exemption for providing financial assistance within ss155-158CA 1985.

One implication of the narrow interpretation in Brady v Brady is that it is difficult to determine what circumstances will fall within the exemption.

Secondly, s680 CA 2006 has abolished the provision of financial assistance only for private companies but has retained it for public companies.

In conclusion, the statement is true to the extent that the prohibition against the giving of lawful financial assistance only affects public companies.

The statement is valid to the extent that private companies are exempted from s678(1).Furthermore, where there are a combination of private and public companies it is the nature of the relationship between them as well as the mechanics of the transaction as a whole that is decisive. Nevertheless, on account of the severe restrictions placed on the application of the purpose exceptions by the decision in Brady v Brady it may be difficult for public companies to apply this exemption in concrete situations, notwithstanding the fact that lawful financial assistance is allowed for public companies under certain circumstances.

2.

a)Zed Ltd is the target of a compulsory winding up or liquidation(s124IA 1986) where the company gives up its business, sells off its assets, pays its debts and distributes whatever whatever surplus remains amongst its members or otherwise as its constitution may provide. The granting of a winding up order on 18 December 2011 means

Zed Ltd owes the creditor at least £750,has been served with a written demand which it has failed to satisfy after 21 days(s123(1)(a) or there has an execution or a judgement in his favour (s123(1)(b) or Zed is unable to pay its debts as they fall due(s123(1)(e) or the value of the company’s assets is less than its liabilities(s123(2)(balance sheet test.)

Under s238 IA86 transactions at under value means the company makes a gift to a person or enters into a transaction for which it gets no consideration, or the company enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the company.

The gift of a minibus breaches s238I(4)A86 because it is made within the relevant period which is two years before the presentation of the petition and amounts to a transaction undervalue..Under 129(2)IA86 August 1 is the date for the commencement of the winding up (Blight Builders Ltd,2008)⁹

The court on the application of the liquidator may make such an order as it thinks fit to restore the pre-transaction position.In Phillips v Brewin Dolphin Lawrie Ltd (2001)¹⁰ the sale of BD’s shares to a bidder was undervalue.The consideration paid under the agreement was the value of the shares(valued by the court at £1,050,000 less than the amount of the redundancy payments paid by BD(£325,000) resulting in transaction at an undervalue amounting to £725,000.While in ReMC Bacon Ltd(1990)¹¹ the liquidators’ argument that the granting of a floating charge to secure an overdraft was a transaction under value failed.

However,under s238(5) transactions made in good faith for the purpose of the business and in the reasonable belief that Zed would benefit would not be invalid.The sale of a machine for £10,000 that was worth £9000 is unlikely to be challenged by the court because the parties were unaware of the petition.Factors that the court takes into account in approving a transaction include whether or not the transaction was made in good faith and if Zed obtain full market value or more for the asset.

S423 IA1986 also covers transactions at an undervalue(as defined in s238IA86).There is no time limit for the liquidator to make an application for a court order for restoring the pre-transaction position. The difficulty here is that the liquidator must show that the aim of the transaction was to put assets beyond the reach of creditors or otherwise prejudicing their interests.| s238 would be more appropriate because the liquidator need not prove that there was an attempt toplace assets beyond the reach of beyond the reach of creditors,

Furthermore, the liquidator would be advised that in order to preserve the property of Zed any dispositions of Zed’s property under the relevant period is void unless the court otherwise orders(s127IA86).

The issue here is whether or not the sale of the machine amounts to a disposition within the meaning of s127IA86.In Re Gray’s Inn Construction Co Ltd(1980)¹² the court of Appeal held that the transactions which were challenged were dispositions within the meaning of s127 and were void.However,Buckley LJ noted that a disposition carried out in good faith when the parties are unaware that a petition has been presented may normally be validated by the court.

b)Janice as director of Zed is a connected person. The issue here is whether the creation of the floating charge amounts to a preference within the meaning of s239IA86 with the effect of putting Janice in a better position in the event of the company going into insolvent liquidation(s239(4)IA86.Such a desire is presumed unless rebutted in the case of Janice since he is a connected person.(s239(6). The relevant time for floating charges for connected persons is two years before the onset of insolvency.Thus,the creation of the floating charge on8 Nov 2009 fell within the relevant time and is invalid .The liquidator would be advised to make an application to the court for restoration of the pre-preference position.In Power v Sharp Investments Ltd(1993¹³)BCC 609 the liquidator was successful in setting aside the creation of a floating charge .The charge has been registered with the Registrar of companies in line with s870CA06 but not in Zed’s own charges register in breach of s876(1) which is a criminal offence punishable by a fine(s876(4)CA06 but nonregistartion in this case does not affect the validity of the charge against liquidators. In Re Fairway Magazines¹⁴ (1993) it was held that the applicant who was a director of the company was only motivated by a desire to raise money quickily.While in MC Bacon Ltd (1990)¹⁵ it was held that there was no preference; the directors were influenced by a desire to stay in business not by a desire to improve the bank’s position as required by s.239.

The liquidator would be advised that the creation of a floating charge did not amount to a transaction undervalue within the meaning of s238IA86 because doing so did not did not diminish or reduce the assets of the company.( ReMC Bacon Ltd(1990)In Paramount Airways Ltd (1991)¹⁶ an administrator was able to claim in respect of funds paid into a bank account in Jersey.

c) The liquidator would be advised that an application under fraudulent trading(FT;s213IA86) and wrongful trading(WT;s214IA86) if successful creates personal liability and can form the basis for the summary remedy outlined in s212IA86 which is available to the liquidator on application to the court. The court can compel the directors to repay, restore or account for money or property lost to the company as a result of breaches of their duties under ss171-177CA06 by invoking s212(3)IA86 which is another way of swelling the company’s assets. In Re Kudos Business Solutions Ltd (2011) A sole shareholder and director of a company was guilty of misfeasance, breach of trust and wrongful trading through allowing the company to pay away advance payments made by its customers for services which the company was never in a position to provide.

With regard to WT it is not necessary to show fraud or dishonesty. What may amount to negligent disregard of the interest of creditors is sufficient. While dishonesty is an essential factor in fraudulent trading. An intent to defraud must be established in FT.In Re White & Osmond(Parkstone)Ltd Buckley J stated that “what was wrong was allowing the company to incur debts when it was clear that it would never be able to satisfy creditors.”

Secondly, both are exceptions to the corporate veil. An application from the liquidator under s213IA86 creates a parallel liability under 993CA06.

Thirdly, only a director can be liable for WT since it is basically a negligent failure of managment.While any person knowingly a party to fraudulent trading may be liable for FT; WT in itself is not a crime, proceedings in this case are purely civil and the court may decide to disqualify a director under s10 of the Company directors disqualification act(1986); the sanctions include an order requiring the director concerned to contribute to the assets of the company and disqualification of the director ;while FT creates criminal liability in s993CA06.

In addition, the provisions relating to WT are confined to conduct after the point of no return when the director concerned knew or ought to have known that there was no reasonable prospect of the company avoiding insolvent liquidation; while in FT, the whole period of trading is relevant.

Furthermore, the provisions relating to FT are directed against the improper incurring of new debt where there is no reasonable prospect of being paid; while the WT provisions are designed for the protection of past as well as future creditors.WT applies mainly to insolvent liquidation while FT applies to both solvent and insolvent liquidation.

In Re Maidstone Building Provisions Ltd (1971)¹⁷ the issue before the court was whether the company secretary was party to carrying on company business with intent to defraud creditors. The secretary who was also the company’s financial advisor was held to be liable for FT by failing to inform the directors that the company was insolvent and needed to stop trading.While in Re Gerald Cooper(Chemicals)Ltd (1978)¹⁸ the director of the company and the directors of a loan company were held liable for FT when they accepted payment from money he had received from a customer to supply indigo in the run up to liquidation when his company had no supplies of indigo. In Re Produce Marketing Consortium Ltd (1989)¹⁹ ,two directors were held liable for wrongful trading and jointly and severally liable to make a contribution of £75,000 towards the assets of the company; they could not rely on the ‘every step’ defence in s214(3) as the evidence was that they had not limited their trading activities to selling the perishable stock in the companies store. Also, in Re Purpoint Ltd(1991)²⁰BCC 121 the director of a printing company was ordered to pay a contribution of £53,572 towards the assets of the company for WT because he ought to have known at the latest May 1987 that there was no reasonable prospect of avoiding liquidation when he was warned by auditors about trading while insolvent.

In Blin v Johnstone (1988)²¹ a director was held liable for breach of trust and misapplication of funds for receiving payment above his normal salary when he knew the company was insolvent.

The liquidator would be advised that the summary remedy means s212IA86 allows him to make an application using ss213 and 214IA86 as grounds to demand civil and criminal sanctions against the Zed directors which if successful creates personal liability. One difficulty would be establishing dishonesty in relation to s.213IA beyond reasonable doubt. But that would be at the discretion of the court. It would be easier for

the liquidator to use the s214 on WT where he only needs to identify the point at which it was wrong for the directors to continue trading knowing that liquidation was unavoidable.

under s238(5) transactions made in good faith for the purpose of the business and in the reasonable belief that Zed would benefit would not be invalid. There is a defence available to the directors if they can show that they acted honestly under 1157CA06. If successful the court may excuse their unlawful conduct.

1 Chaston v SWP Group plc(2003) 1 BCLC 675 at 689

2 Heald v O’Connor (1971) 1 WLR

3 In Acatos and Hutheson plc v Watson(1995) 1 BCLC 218

4 Steen v Law (1964) AC 287

5 Charterhouse Investment Trust v Tempest Diesels Ltd(1996) BCLC 1 318

6 In Belmont Finance Corp Ltd v Williams Furniture Ltd (1979) Ch 250

7 Arab Bank v Mercantile Holdings Ltd(1994) 1BCLC 330

8 Brady v Brady(1989) AC 755

9 Blight Builders Ltd,2008) BCLC 245

10 In Phillips v Brewin Dolphin Lawrie Ltd (2001) BCC 864

11 ReMC Bacon Ltd(1990) BCC 78

12 Re Gray’s Inn Construction Co Ltd(1980) WLR 711

13 In Power v Sharp Investments Ltd(1993)BCC 609

14 Re Fairway Magazines (1993)

15 MC Bacon Ltd (1990) BCC 78

16 Paramount Airways Ltd (1991) 3 WLR 318

17 Re Maidstone Building Provisions Ltd (1971) 1 WLR 1075

18 Cooper(Chemicals)Ltd (1978) 2 Ch 262

19 In Re Produce Marketing Consortium Ltd (1989) BCLC 213,

20 in Re Purpoint Ltd(1991) BCC 121

21 Blin v Johnstone (1988) SC 63  

Equality and Disablity Discrimination

Basically ,the Equality Act (EA) s.6(1)2010 defines a disabled person as someone with a physical or mental impairment that has a substantial and long-term effect on his ability to carry out normal day-to-day activities. EA 2010 outlines a number of protected characteristics which differs from the Disability discrimination act’s (1995) definition which required that person to show that an adversely affected day-to-day activity involved a list of capacities including mobility,speech,hearing or vision or manual dexterity.

The DDA provided protection for disabled people only in employment and related areas while EA2010 is far-reaching by protecting disabled people in areas such as supply of goods and services.

Disability is one of the protected characteristics in Chapter 1(4) of the EA 2010.Prohibited conduct includes direct or indirect discrimination, harassment and victimisation. Regarding direct discrimination s13(1) states that (1)A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.There must be a direct causal link between the less favourable treatment and the protected characteristic.In R v Birmingham City Council exp Equal Opportunities Commission(1989)¹Lord Goff said there is discrimination if there is less favourable treatment on grounds of sex.

The introduction of “because of” to replace the old terminology “on grounds of” broadens the scope of the law on direct discrimination by allowing claims to be brought by someone who is treated less favourably not because of his disability but because he is associated with someone with a protected characteristic including disability.

In addition, the use of the phrase ‘related to’ in s.26(1) gives a broad outlook to the section.It implies that the section prohibits any unwanted conduct connected with rather than merely because of a protected characteristic.In Coleman v Attridge Law&Stephen Law²it was held that the claimant had been discriminated against not because of her own disability but on account of having to take care of a disabled child.

The act also outlines a single definition of indirect discrimination that is applicable to disability. Under the old law there was no protection against indirect discrimination on grounds of disability. The act has changed this and in so doing rectifies a problem arising from the case of Mayor and Burgesses of London Borough of Lewisham v Malcolm, [2008]³ which watered down the test for ‘disability related discrimination to such an extent that it became impossible to prove that such discrimination had occurred. In Malcolm the House of Lords held that the correct comparator would be someone without a mental disability subletting his flat . This made it virtually impossible for claimants with a mental disability to bring a successful claim for discrimination

Disability is further defined in Schedule 1 ‘Disability: Supplementary Provision’, ‘Part 1: Determination of Disability. Within the meaning of the act it is the effects of the impairment rather than establishing if it is a “clinically recognised” condition that is decisive. In other words, an illness can be either the cause or effect of an impairment. Lindsay J stated in College of Ripon & York St John v Hobbs [2002] ⁴ that “an impairment can be something that results from an illness as opposed to itself being an illness.”

There is a shift from the medical to the social model of disability in EA2010 which is an improvement. In J v DLA Piper UK LLP(2010)⁵ the court held that the argument that the appellant did not have an impairment was invalid by rejecting the “medical diagnosis “ test because the requirement to demonstrate a clinically recognised condition was removed in 2005.

In order to make a disability claim a person must satisfy the statutory definition of disability. EA 2010 states that“The effect of an impairment is long-term if it has lasted at least12 months, is likely to last at least 12 months or is likely to last for the rest of the life of the person.”

Where an impairment is off and on it is treated as having a long-term effect where the probability of recurring is high. In SCA Packaging Ltd (appellant) v. Boyle (respondent) [2009]⁶ the court extended the definition of “likely” from “more likely than not” to “could well happen” and the appeal of the employer failed. What is essential is the effect and not the impairment. Where an impairment is off and on it is treated as having a long-term effect.

Regarding normal day to day activities ,the” list of capacities” outlined in DDA schedule 1 para 4(1) one of which must be affected have been repealed which facilitates flexibility in the implementation of this part of the test.In Ekpe v Commissioner of police of the Metropolis(2001)⁷ it was held that an activity need not be normal day-to-day activity for both sexes to fall within the definition.

s.15 (1) outlines what amounts to discrimination arising from disability:E+W+SThis section has no associated Explanatory Notes

(1)A person (A) discriminates against a disabled person (B) if—

(a)A treats B unfavorably because of something arising in consequence of B's disability, and (b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim. The replacement of ‘less favourable’ with ‘unfavorable’ has eliminated the requirement of a comparator which is an improvement on the DDA 95 s3a approach. This provision has been introduced to reduce the harm done in London Borough of Lewisham v Malcolm [2008] where the court’s construction of a comparator effectively rendered the provision useless.

“Substantial” means more than minor or trivilal.In “Goodwin v Patent Office(1999)⁸ Morrison J held that the fact that a person can carry out activities does not mean that his ability to do them has not been impaired.

S15(1)(b) is an objective justification test which enables the defendant to escape liability for the unfavourable treatment of the claimant.

A defendant can escape liability if he proves that the unfavourable treatment in question is a proportionate means of achieving a legitimate aim. The expression ‘proportionate means of achieving a legitimate aim’ represents the objective justification test which may involve considering and eliminating other alternative measures which would be less discriminatory before making rules.

It is not necessary to establish that there was no alternative to the PCP that was applied but its application has to be justified in spite of its discriminatory effect. The principle of proportionality requires the court to consider the reasonable needs of the business in making its decision. The test of proportionality was established in Bilka-Kaufhaus Case C-170/84 [1986]⁹ and requires the PCP to be the right solution.

The notion of detriment is broadly interpreted and does not require any tangible loss. Depriving a person of a valued choice is sufficient and there is no need to establish a causal link between the prohibited conduct and the claimant’s disability.

s.15(2)EA2010 introduces the requirement of knowledge as a defence where P can show that he did not know or could not be expected to know that the claimant is disabled.s15 (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.However,if an agent of the employer such as a line manager knows then the defendant cannot escape liability,

Although, the introduction of knowledge is a positive development, there is no guarantee that a disabled person will not suffer discrimination by informing his employers of his disability.

The EA 2010 introduces a stage where an employer is under a duty to make reasonable adjustments for disabled persons. This trigger point is where not doing so would put them at a substantial disadvantage compared to non-disabled persons if the adjustments were not made.

s.20.EA2010 makes it obligatory for employers and service providers to make reasonable adjustments . The duty comprises the following three requirements:

Firstly, where a provision, criterion or practice (PCP)of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as is reasonable to avoid the disadvantage.

Secondly, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, it is obligatory for the employer to take such steps as is reasonable to avoid the disadvantage.

Thirdly, where a disabled person would but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as is reasonable to provide the auxiliary aid.

PCP has the same broad meaning as in indirect discrimination(s.19)In Fareham College Corporation v Walters (2009)¹⁰ it was held that the claimant was unfairly dismissed because of his disability or sickness and that in order to determine whether a PCP placed the claimant at a disadvantage it may not be necessary to identify non-disabled comparators.

Sch. 8 para. 20 EA2010 provides the circumstances under which duty to make reasonable adjustments is triggered. Whether or not an adjustment is reasonable cannot be treated in isolation from the issue of affordability for the employer who could get rid of the claimant using the expense of making the desired adjustment as an unreasonable adjustment. In Cordell v Foreign and Commonwealth Office(2011)¹¹ it was held that as regards the claim of direct discrimination the appellant’s non-appointment was not due to her disability as such but the costs of the adjustments which it necessitated.

In Melville v Home office the issue before the court was whether the claimant had suffered psychiatric injury arising out of stress at work handling suicide victims. It held that the appellant had failed to take reasonable care because the system which they had devised for dealing with that risk had not been implemented in respect of the claimant

Furthermore, s.60 EA2010 attempts to create a level playing field for job applicants who may have a disability by prohibiting employers from making pre-employment enquiries about disability and health. This rule applies not only to questions to applicants but also questions to referees for those job applicants. This provision is intended to prevent disabled candidates from being unfairly screened out at an early stage of the recruitment process.

Another issue is that the EA provides protection from harassment because of a disability. s.26 defines such conduct as (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim because of his disability. Previous legislation only offered work-related protection.

Certain medical conditions are exempted from the test of ‘substantial adverse effect’. These are outlined in EA 2010 Sch. 1 Pt 1 para 6(1) such as Cancer,HIV infection and multiple sclerosis. Progressive conditions which may initially not have a substantial adverse effect are also covered in EA 2010 sch.1,Pt 1,para 8(1). Such conditions as a tendency to set fires or addictions to non–prescribed substances are specifically excluded from the EA 2010.

In conclusion, I share the view that the EA 2010 represents a considerable improvement in the protection to disabled people by widening the scope of the protection provided to disabled persons to cover both work-related and non-work related areas as well as its introduction of the concepts of protected characteristics ,prohibited conduct, direct and indirect discrimination. However, the concrete benefits of EA2010 will be measured by its application in decided cases.

1 R V Birmingham City Council exp Equal Opportunities Commission(1989) AC 1155

2 Coleman V Attridge Law &Stephen Law-C-303/06

3 Mayor and Burgesses of London Borough of Lewisham v Malcolm, [2008] IRLR 700 HL

4 College of Ripon & York St John v Hobbs [2002] I.R.L.R. 185 EAT

5 J v DLA Piper UK LLP(2010) ICR 1052

6 SCA Packaging Ltd (appellant) v. Boyle (respondent) [2009] UKHL 37

7 Ekpe v Commissioner of police of the Metropolis(2001) IRLR 605 EAT

8 Goodwin v Patent Office(1999) ICR302

9 Bilka-Kaufhaus Case C-170/84 [1986] ECR

10 In Fareham College Corporation v Walters 2009 IRLR 991

11 Cordell v Foreign and Commonwealth Office(2011) UKEAT/0016/11/SM

Bibliography

Equality Act 2010- A Guide to the New Law,Editor-Michael Duggan,Published by Law Society,London,2010.

Equality and Discrimination :The New Law,Brian Doyle,C. Casserley,S. Cheetham,V.Gay &O.Hyans,Jordan Publishing,Bristol,2010.

Office for disability issues : http://odi.dwp.gov.uk/disabled-people-and-legislation/equality-act-2010-and-dda-1995.php

Blackstone’s Guide to the Equality Act (2010) Wadham. J. (Ed),

Discrimination Law: Theory and Context, Text and Materials 1 Bamforth. N., Malik. M. and O’Cinneide , Sweet& Maxwell Ltd. (2008)

Discrimination Law: Texts, Cases and Materials, McColgan. A., Hart Publishing, Oxford and Portland, Oregon, Second Edition, 2005 .

Shaw Trust : www.shaw-trust.org.uk/disability

HR Magazine: http://www.hrmagazine.co.uk/hro/news/1018514/the-practical-implications-equality