Discrimination in the workplace

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Date added: 17-06-26

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Part 1 The laws enacted to protect people against discrimination in the workplace would protect the position of Mr Gruffin (Mr G) who probably has a valid argument that he has been discriminated against although more detail would be required in relation to establishing exactly why he has been discriminated against. The main spheres of law which protect his rights in these circumstances exist within the field of anti-discrimination legislation (Selwyn, N. (2006) 1-20). Because Mr G has not been employed for longer than 12 months he cannot sue for unfair dismissal, since the requirement of being employed for 12 months is a preliminary requirement, under the Employment Rights Act 1996, section 94, and this requirement must be satisfied before any action for unfair dismissal can be brought. Mr G may still bring proceedings relating to this dismissal but he must show that the motivation for it was discriminatory. The facts of the problem suggest that Mr G was dismissed following anti-racism protests. This suggests that he was discriminated against on the grounds of his political opinions. Because of the Employment Equality (Religion or Belief) Regulations 2003, Mr G has a right to hold political views without them forming the basis for his being dismissed. The protests of the anti-racist campaigners have definitely placed the employers of Mr G into a difficult position. However Mr G is entitled to carry out his duties at work without being discriminated against because of his political opinions. The European Council adopted Directive 2000/78/EC in November 2000. Most discrimination law in the UK in relation to employment has either been formulated on its basis, or has been reformulated following the coming into force of the Directive. While the FD envisaged a reverse onus in terms of proving infringements of the FD; in UK law there is a requirement to ‘prove’ facts of infringement on a prima facie basis. Therefore, if Mr G wishes to argue that he has been discriminated against by his employer he must make an application to an employment tribunal and state his case that he has been discriminated against as precisely as possible. If he did so he would be required to prove, on a prima facie basis that he was discriminated against, on the grounds of his political opinion. The fact that he held the views he states he held, and the facts that he was dismissed following anti-racism protests may not, however be enough of themselves to show these prima facie facts. This creates difficult evidential issues for Mr G, in particular if he wishes to advance more than one discrimination claim simultaneously. Because of this difficulty with establishing the facts of cases on a prima facie basis, the possibility of a flawed transposition of the Framework Directive, by the UK has been suggested. Article 226 of the EC Treaty put member states under an obligation to transpose directives into domestic law after seven years. Where a Directive has not been implemented properly by a member, after seven years, an individual is entitled to obtain a remedy against a member state government directly, for failure to implement the Directive (Francovich v Italian Republic (1995) ICR 722). It would be worthwhile for Mr G to be aware that he may have an alternative remedy against the UK government for failing to transpose the reverse onus of the Directive correctly. Given that Mr G could find it hard to prove discrimination on a prima facie basis, the existence of a possible alterative remedy against the UK government may also be open to Mr G. Although the facts of the problem suggest that Mr G’s sexual orientation is not in issue, in terms of anti-discrimination legislation, it may be that the dismissal occurred not just because of the political opinions, but also, or only because of the fact that Mr G is gay. Mr G is likely to have similar rights if he has been discriminated against on the grounds of his being 64, or indeed if he has been discriminated against because he is a man or because he is white. The Employment Equality (Sexual Orientation) Regulations 2003, and The Sex Discrimination Act 1975 and the Employment Equality Sex Discrimination Regulations 2005 make harassment, victimisation and unlawful discrimination (direct and indirect) on the grounds of sexual orientation (including what a person’s sexual orientation is perceived as) (regulations, reg. 2(1)) (SDA section 1 (a and b) 4) and on the grounds of sex, unlawful. Equally, the Employment Equality Age Regulations which came into force in October 2006 prohibit discrimination and harassment on the grounds of a person’s age and the Race Relations Act 1976 protects Mr G’s position if he has been discriminated against because of his race. Under these pieces of legislation, or in relation to his political belief, Mr G may allege direct or indirect discrimination. Direct discrimination is where a person treats another person less favourably than he would treat, or treats other people, on the grounds of the feature of the employment which Mr G would allege he has been discriminated against in relation to. Less favourable treatment encompasses both acts and omissions (Gill and Coote v El Vinos Co. Ltd [1983] IRLR 206), and can take the form of words, and a failure to provide opportunities (Weathersfield Ltd (t/a Van and Truck Rentals) v Sargent [1998] ICR 198). Where less favourable treatment is alleged, detriment must be shown, and the test for detriment is whether the treatment was such that a reasonable worker would or might take the view that, in all the circumstances, it was to his detriment (Lord Hope, in Shamoon v Chief Constable of the RUC ([2003] IRLR 285)). Mr G can compare the treatment he receives with either a hypothetical or an actual person, as long as the comparison involves circumstances which are relevant and which are the same or not substantively different. Indirect discrimination, occurs where a person applies a provision, criteria or practice which applies equally to a complaint under these pieces of legislation, and others but renders or would render persons of the same age/race/sex/sexual orientation as that complainant at a disadvantage. In general, in relation to these pieces of legislation, if a complainant proves facts from which a tribunal would be in a position to conclude (in the absence of a satisfactory explanation) that a respondent has acted unlawfully, or should be treated as such, a tribunal is obliged to uphold the complaint unless the respondent can prove, on the balance of probabilities that no unlawful act was done, or that the respondent should not be treated as if unlawful acts had been carried out. The rules relating to discrimination have changed because of the Equality Act 2006. As of April 2007, discrimination in the execution of public functions (EA, sections 51-52) has been prohibited. Because the Health Authority are a public body they would be required to observe the regulations imposed by this legislation. A duty is imposed by the EA upon public authorities (EA, section 51) to promote equality of opportunity between men and women, and to eliminate unlawful discrimination and harassment. The issuing of instructions to discriminate is also prohibited by the EA. Before any issue of proceedings for discrimination against his employer, Mr G should contact his employer and participate in the statutory grievance procedure which is now a legal requirement before legal proceedings may be brought. If Mr G wants to make a complaint of discrimination to an employment tribunal he must also raise a grievance under the Statutory Grievance procedures, and a meeting between the two is required to discuss it (The Employment Act 2002 (Dispute Resolution) Regulations 2004, section 12). An employer or employee who does not co-operate with these procedures is subject to financial penalties (The Employment Act 2002 (Dispute Resolution) Regulations 2004, section 12). A claim must be brought before the end of a period of three months from the date of the act complained of was carried out, although an employment tribunal has the power to extend this period in certain circumstances (Employment Act 2002 (Dispute Resolution) Regulations 2004, section 15). Any act which forms the basis of a complaint and which extends over a certain period of time is treated as done at the end of that period. Mr G’s position is therefore protected by the anti-discrimination laws in the UK. More information would be required to decide exactly whether or not Mr G would have a good claim or even a claim with a reasonable prospect of success. The law of employment is very technical (Lewis, T. (2007) Ch. 1-2) and it is important to note that while ostensibly it may appear that Mr G has been treated unfairly, the law is an imperfect mechanism and its application may not always serve to redress what is unfair or what is unjust. Mr G needs to consider his position carefully, however on the face of the facts it does appear that he would be able to ground a good claim for discrimination on the grounds of political opinion, and perhaps other forms of discrimination as well. Part 2 The Equal Pay Act 1970 has abjectly failed to bring about equality of pay for men and women and should be abolished This essay will outline the background to and the purpose of the Equal Pay Act 1970, and will explain how it works in practice. This will enable the writer to critique the legislation using an informed basis, and therefore this background will both inform and add credibility to the critique. Caselaw will be used throughout the essay to illustrate points made and to assist in developing theoretical ideas and concepts into a consolidated and contemporary critique of the legislation, how it works in practice and how successful it has been in bringing about equality for men and women. This will enable the writer to evaluate the title proposition. The Equal Pay Act 1970 has been enacted to ensure equality of pay between men and women in a work environment. It in part transposed Article 141 EC which passed this legislation at EU level, and reflects the interventionist approach which has been taken in the EU towards socio-legal issues. The influence of EU law has influenced the development of this legislation in the UK and the Sex Discrimination Act and other anti-discrimination laws have evolved simultaneously to offer protections to employees in the workplace. Some critics of the Equal Pay Act 1970 are actually tacit criticisms of the amount of influence European actors have had upon the trajectory and evolution of the domestic law with regard to pay issues. It has also been argued that the influence of European legislation has simply added more complexity to the operation of legal rights without actually bolstering the rights of the individual employee. Litigation to protect rights in a work environment is also often very costly. The powers of employment tribunals to order remedies on the behalf of the applicant are also often so narrow that, to litigate to protect one’s position in work may often be counterproductive, and this critique of employment law in general has also added fuel to the argument that the Equal Pay Act 1970 has abjectly failed and should be abolished. However, before the position is evaluated a look at the operation of the Act is necessary. The legislation works by impliedly including what is referred to as an equality clause into a contract (Bamford et al. 2003 157). This is governed by section 1 of the Act, which ensures that a women in employment has a right to be treated no less favourably than a male comparator, provided the work she is doing is similar to work undertaken by a man in the same employment, that the work is considered equivalent with that of a man in the same job and that the work undertaken by both the female and the male comparator is of equal value to that of a man in the same employment. The concept of the male comparator within this field of legislation is quite an important one. In order for a male comparator to be considered as a male comparator the female must be employed in a common workplace with him, or if the two are engaged in employment in different workplaces, the basic terms and conditions of employment must be the same. The case of British Coal Corporation v Smith and Others [1996] IRLR 404 sheds some light on what is meant by a common workplace. The concept has been given quite a broad and quite a liberal interpretation (Bamford et al. 2003 157). An employer may defend an equal pay claim by arguing that any disparity in pay arises from a genuine material factor which is not sex, according to the Equal Pay Act 1970, section 1(3) and these provisions ensure that an employer faced with a claim under the Equal Pay Act 1970 may rely upon certain statutory defences to assist them. A typical implementation of the Equal Pay Act 1970, and its process is demonstrated in the following passage: “Employees can bring an equal pay claim at any time during the course of their employment. This means a woman can bring a claim even if she ceased to do the particular job which forms the subject matter of the claim some considerable time ago….For instance, a woman works part-time from 1988 to 1995 and then moves to a fulltime post with the same employer under a variation of the same contract. In 1997, she brings an equal pay claim alleging discrimination during the period that she worked part-time. The principle……permits the claim to be brought at any time during her employment and until six months after the termination of her contract…. (http://www.eoc-law.org.uk)”. Even employees who are employed illegally may still be allowed to bring an equal pay claim. In Hall v Woolston Hall Leisure [2000] IRLR 578 this was held to be the case. The facts of this case were that the compliant knowingly defrauded the Inland Revenue but it was held by the Court of Appeal that this did not necessarily represent a bar to an claim under the equal pay legislation. The practical application of the legislation could also be regarded as a means by which to support an argument that the Equal Pay Act has abjectedly failed to bring about equality of pay for men and women. Legal Aid for most employment law matters has been abolished and now a person is only entitled to very limited assistance from the government at the start of their case. In some limited instances bodies such as the Equality Commission in Northern Ireland and trade unions, for example can provide representation free of charge to individuals who have a grievance at work. However the competition for this is fierce and it is often the case that deserving applications for assistance cannot be supported. The procedures in place to assist employers apply for costs against vexatious, or disruptive litigants also may discourage people who feel they have a grievance from coming forward as these can often mean that a represented employer can take tactical advantage of the position of the employee and cause them to fall foul of the rules relating to these procedures. The law also has limited ability to regulate the position of parties in an employment field where personal tensions are high, and where the taking of legal proceedings can lead to acrimonious relationships and division between work colleagues and between employees and management, and it is usually the case that once a person decides to take legal action against an employer they must give up their job since to combine working and suing one’s employer is often a difficult situation. These arguments further support that view that the Equal Pay Act 1970 has failed to achieve its objective and should be abolished. The title proposition however is flawed because of its lack of flexibility. Such a generalised statement fails to admit even the possibility that the Equal Pay Act 1970 has been effective in some respects. Even the harshest critics of the Equal Pay Act 1970 would find it difficult to support such a proposition. Perhaps the Equal Pay Act 1970 has, like all legal doctrines, become more effective as it has been tested in practice by various actors within the legal system, and this process of testing has arguably both highlighted and addressed flaws in the legislation by virtue of highlighting them. The difficulty lies, arguably, not with the legislation but with the problem it attempts to regulate. The problem of ensuring that men and women get equal pay for equal work is a difficult one to address. The imposition of legal regulation means that the conditions between men and women vis-à-vis each other within a work environment have to be rigidly described and defined, since this process, by default identifies the ambit of the legislation and in what circumstances it may be enforced. This process can perhaps best be achieved pragmatically, and incrementally and the effectiveness of such an approach is built up, and not imposed from the start. This imputes that failures in the legislation can be identified, but because the doctrine is a flexible one, these failures can be addressed as they arise, and this usually safeguards against the same problem arising again. Perhaps the title proposition may be justified to an extent in that the Act probably has not brought about equality of pay for men and women. However, this does not ground an argument for it to be abolished. People in favour of the title proposition must acknowledge that while the Equal Pay Act 1970 is undoubtedly flawed it, like most legislative initiatives is designed to be tested and developed through the operation of case law, which evolves pragmatically. BIBLIOGRAPHY Books Selwyn, N. (2006) Selwyn's Law of Employment. Oxford University Press. UK. Lewis, T. (2007) Employment Law: an advisers' handbook: An Advisers' Handbook. Legal Action Group. UK. Bamford et al. (2003) Employment Law. The College of Law. UK. Website http://www.eoc-law.org.uk/default.aspx?page=2672
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