Impact of Equality Act on Businesses

Critically review the discrimination of company policies and how the equality act 2010 will have an effect on businesses

Methodology

With regards to my chosen subject of dissertation, I will be using various methods of research in order to gain the fullest and clearest definitive conclusion.

I have chosen to use qualitative methods as opposed to quantitive methods of research as I will be critically evaluating the Equality Act and the impact it has on businesses.

The reason I am using qualitative methods of research is because the Law is already published, therefore it would not give me the depth to critically analyze this legislation that has already been passed.

The methods I will be using will be:

Law Publications

Journal Articles

Books

Internet resources such as Times Online.

The reason I will be using Law Publications is because it will break down the terminology used in the Equality Act. This is codified eight pieces of legislation into one.

I will also be using Journal articles this is because it will allow me to view old legislation in comparison to new legislation, which will have been critically scrutinized by lawyers specialising in this field. The Journal articles will be too vague therefore I will be using books such as Equality and Discrimination: The New Law. Books will give me an in-depth comparison to the old legislation and will make reference to the specific cases that are lay down as precedents. Books will also give me direct quotes from the Act and an idea of what Judges believe the implications of these words will be.

Internet resources will be useful because they will give me not only lawyers point of views but the publics also. They will also allow me to extract key information via debates between specialists and businesses. Therefore allowing me to answer my question effectively with views from both those against the Equality Act and those for it.

For the above reasons I believe my study will be thorough and precise.

Literature review

1“Experts fear the significant strengthening of anti- discrimination law will lead to a surge in employment tribunal claim as well as increasing the burden of red tape on businesses”. The act aims to make right simpler by bringing together nine pieces of legislation, the act has made some changes because of a recent decision of House of Lords in London borough of Lewisham v Malcolm. S3A 1 DDA 1995 has been replaced by section 15 of EA ACT 2010 2“the government express intention in so doing was to reversed decision of Malcolm”

The new law journal volume 160 suggests the Equality act 2010 will make it easier for employees with mental health problems to bring a disability claims3″, here we see that critics fear there will be a rise in employment issues simply because the equality act has favored employees and has put a burden on the employers. The law journal examined the case j v dla piper uk llp4 which was governed by the dda and gives a comparison to the new law which states it is no longer necessary to consider a list of eight capacities5

In contrast to the above Brian Doyle the equality and discrimination6 makes comparison of six changes,

Pre Employment Health Questions:

Under Sec 60 of the 2010 Act, it will only be lawful to ask questions on health after a job has been offered to the employee by the employer. This is because, it will ensure there is less discrimination based on a person’s disability, giving those with a disability a fairer and more opportunity to apply for jobs and interviews. It is only once a job has been offered, conditionally that further health questions can be asked.

“The author believes that s60 will limit the making of enquiries and help to tackle their disincentive effect on disabled people applying for work” [1]

Direct Discrimination:

The author mentions that s13 of Equality Act 2010 replaces definitions of direct discrimination in previous legislation this was designed to provide a more uniform approach, by doing so according to this author it will open barriers for claims as there are a lot of protected characteristics and will be much harder for employers to work around. It stems to say unreasonable behaviour against protected characteristics will not be discriminatory Glasgow City Council v zafar [2]

Dual Discrimination:

This author has gone on to talk about section 148 on dual discrimination the pre-existing law required a claimant to bring separate claims what is mentioned under section 14 allows claims but only on the grounds of protected characteristics this will be purely based on direct discrimination not indirect it will still need to be compared with a comparator, this will therefore mean it will open flood gates and it does little to remove complexity or the times and expense for employers in dealing with multiple claims

In contrast to the joint committee on human rights it recorded a view that multiple discrimination should not be limited to 2 grounds alone and should be extended to encompass indirect discrimination and harassment page 40, this excluded pregnancy, Marriage and Civil Partnership and we see that there is a loop hole in this legislation as some people may be deemed not to be protected by this legislation. Again this legislation is showing unfairness as it suggests someone specifically targeted will be protected but a pregnant person would not be, for example if a pregnant person was rejected a promotion and another person got that promotion this EQA 2010 will not protect her under section 14 showing unfairness.

Blackstone’s guide to equality act mentioned for employers this may be an issue as there could be factors beyond their control such as provisions for disabled people within the company building, the author had gone on to say that the equality act may have affect on the jurisprudence of hra 1998. “A number of rights and freedoms protected under the hra have direct relationship with notions of the equality and non discrimination” [3]

This will be of particular significance where consideration is being given as to whether a discrimination claim is brought a human right claim or both. Looking at this we can see the author is not for the act as this will open significant claims, the author claims we are in recession the act makes it harder for employers as there are too many protected characteristics which firms are already complaining about having to face a £190 million to comply with the new legislation, which enhances protection for disabled people and prevents employers from banning staff talking about their pay packages.

Harassment

David boyle The New Law and the Blackstone guide to Equality Act both agree It will make it easy to bring claims on harassment under section 40 [4] if you’re not disabled but look after a disable person you can bring a claim on discrimination,

According to black stones harassment needs no long to be for a reason which relates to disability, which was previously required by the DDA 1995, harassment now need only to be “related to” the disability Abbey National v Fairbrother where there was held to be no breach of the DDA as it stood at the time

S26 lays Disability harassment is unwanted behavior related to disability that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. All three authors implement but what if this was not the purpose, but the claimant argues this was the effect of the conduct? S.26 (4) Equality Act 2010 deal with the matter [5]

David Boyle expresses concerns that this wording “related to” act may allow claims in the sense allowing victims of harassment who is hypersensitive Such a ‘victim’ might say it was perfectly reasonable for him, because of his hypersensitivity, to consider that there had been harassment.

Hypothesis

Introduction

The legal framework to protect workers from discrimination will always involve tension between the basic principle of freedom of contract, and that of equality. Discrimination, in the strict sense of the word, is an essential part of employment and the recruitment process, as it is simply to perceive the difference between individuals and act based upon these differences. On the one hand, employers should be free to select their workforce in any way they choose without external interference, but on the other workers should be protected against discrimination based on irrelevant or unfair grounds. Thus the principle of equality must outweigh that of freedom of contract, in order to protect certain groups from being unequally

Treated due to shared attributes which are not relevant to their ability to carry out the work. Wherever one works there will always be curtain rules governing discrimination, for example sex discrimination act. The equality act 2010 has brought all these acts under one act, the new equality 2010 section 4 of the act breaks down discrimination into nine categories [6]