Anti Discrimination Legislation

The various pieces of anti-discrimination legislation in force in the United Kingdom provide an absolute prohibition on discrimination in the workplace.

With reference to legislation and case law, indicate the extent to which you agree with this statement.

The original position of law in the UK was that employers reserved the right to reject job applicants, refuse to promote workers, and dismiss them for any reason whatsoever including discriminatory ones, without redress. By the middle of the twentieth century some of the discriminatory laws against women had been repealed. Laws forbidding racial discrimination came on to the statute book in the mid-1960s but current law dates from the mid-1970s. The Sex Discrimination Act 1975 and the Race Relations Act 1976, both as amended, the former particularly by EC law, for a long time were the sole statutes in this area but they were joined by the Disability Discrimination Act in 1995 (DDA), which had also been amended. Laws against discrimination on the grounds of sexual orientation, and religion or belief came into effect in late 2003.

It is worth stating that laws on sexual and racial discrimination tend to be very similar and in general they should be construed alike. They both cover direct and indirect discrimination; though for the moment the definition is different in relation to indirect discrimination on grounds of colour and nationality, victimisation, though racial discrimination also covers segregation. Both have exceptions, “˜genuine occupational qualifications’, though the list is shorter in respect of racial discrimination than sexual discrimination. Note also that discrimination on the ground of race or ethnic or national origins also had “˜genuine occupational requirement’ as exceptions to the anti-discrimination principle.

Disability discrimination is somewhat different. Unlike in racial and sexual discrimination, disability-related discrimination may be justified by the employers. However, direct discrimination cannot be justified: s. 3A (4) of the DDA: there is no law of indirect disability discrimination but there is a law of “˜reasonable adjustment’, which is the functional equivalent of indirect discrimination. Employers no longer have a defence of justification to this type of disability discrimination.

There are six grounds in which discrimination in employment is prohibited: race, sex, religion, disability, age or sexual orientation. The EC law influences this prohibition hugely, as for another so does the Human Rights Act 1998 which requires to interpret all legislation (and to an extent it would seem the common law), whatever its subject-matter, in the light of the potentially open-ended prohibition on discrimination contained in Article 14 of the European Convention on Human Rights.

The current laws that have been legislated have been vital in increasing the awareness of the issue of discrimination and have played a vital role in combating the problems that occur in everyday employment. To assist the understanding of Equal opportunities it is important to look at the legislation that governs this area.

The Equal Pay Act 1970 (EPA 1970)

The Equal Pay Act 1970 (EPA 1970) makes it illegal to discriminate between men and women in relation to pay and other terms of employment. Employees are entitled to equal treatment with someone of the opposite sex who is employed carrying out jobs of a similar nature or work of equal value. Amended by the 1983 Equal Pay Regulations a woman or man can also seek equal pay to someone of the opposite sex if their work is of equal value in terms of the demands that it makes. In regards to this Act, more recently the National Minimum Wage was implemented In the UK in April 2000 to further help to decrease discrimination problems. Equal pay claims can be made for:

• Like work-work which is the same or broadly similar. In the case of Capper Pass v Lawton (1977) Lawton was employed as a cook working 40 hours a week being in sole charge of preparing daily lunches for 10-20 directors and their guests. She brought an equal pay claim, comparing her job to those of two male assistant chefs. They worked a basic 40-hour week with 5.5 hours of regular weekly overtime, and they worked one weekend in three. They prepared 350 meals each day in two sittings .the tribunal held that the cook and assistant chefs did like work and hence an equal pay claim was upheld.
• Work rated equivalent under a job evaluation scheme. Springboard Sunderland Trust V Robson (1992)-Mrs R was a Team leader and she compared her terms and conditions to Mr R, an induction officer. Following a job evaluation process carried out by the employer, Mrs R’s job was evaluated at 410 points and Mr R’s at 428 points. The company-grading scheme stated that jobs with between 360 and 409 points were grade 3 and jobs with between 410 and 439 points were grade four. However, the company continued to treat Mrs R as a grade three. The tribunal found that Mrs R had to be treated as a grade four in accordance with the evaluation process.
• Work of equal value in terms of demands made. Hayward V Camel Laird (1984). Hayward was a cook employed in a shipyard. She claimed her work was of equal value to painters, insulation engineers and joiners working on the same site. The Tribunal appointed an independent expert who carried out an investigation into the claim. He supported Hayward and the claim for equal pay was allowed.

The Equal opportunities Commission oversees and promotes the aims of this act. This act has been criticised as its provisions are complex and it can take many years for claims under it to reach conclusion.

The Sex Discrimination Act 1975 (SDA)

The Sex Discrimination Act 1975 (SDA) was drafted using the United States law as a template as opposed to in reliance on the EC law, the Equal Treatment Directive 76/207 (ETD) as one would have thought. The Home Secretary, who was then the late Roy Jenkins, was persuaded to have the statute drafted to cover both direct and indirect discrimination, rather than having it cover the former in order to root out what may be called hidden discrimination. The UK joined the EEC, as it then was, in 1973 and for several years, it can be argued, UK law was in advance of EC law. In particular, in the context of equal pay the ECJ extended the concept of indirect discrimination to EC law in Jenkins v Kingsgate (Clothing Productions) Ltd . Nowadays EC law is likely to be in advance of UK law.

This Act makes it unlawful to discriminate against somebody because they are a man or woman either directly or indirectly. This Act also set up the Equal Opportunities Commission to support people who believe they have been discriminated against because of their sex or gender. Sexual harassment (unwanted or uninvited sexual conduct) is also unlawful under the Sex Discrimination Act and employers may be liable for discriminatory acts carried out by employees.

“Direct discrimination occurs when one person is treated less favourably on the grounds of sex or race.” In Greig v Community Industries (1979) the applicant was on a work experience scheme for painting and decorating. She was withdrawn from the scheme when the only girl left “for her own good”. It was held that she suffered from direct discrimination and the motive behind the action was irrelevant. “Indirect discrimination is discrimination against a particular sexual or racial group with prejudices to the complainant.” This form of discrimination more complicated and occurs when a particular condition or requirement is imposed that does not refer to race, gender or disability but works to the disadvantage of that particular group, where those members of the group are less able to comply with the condition or the requirement. Indirect discrimination occurs if the requirement cannot be justified in terms of needs of the job. For example in relation to imposed requirements or conditions such as imposing age requirements in job adverts, non-promotion of pregnant women or setting tests and qualifications needed above the requirement of a vacancy. In the case of Price v CSC (1978) the imposition of an age requirement of 17 ½ to 28 for promotion to executive officer was held to be indirect discrimination as more women than men would be out of the labour market between those ages to have children. Such limits could also be indirect race discrimination, if potential applicants were immigrants who were likely to have necessary qualifications for the job by the age of 28, because they entered the educational system at a later age than the indigenous population.

The Sex Discrimination Act 1975

The Sex Discrimination Act 1975 makes it unlawful to discriminate against somebody because they are a man or woman either directly or indirectly. This Act also set up the Equal Opportunities Commission to support people who believe they have been discriminated against because of their sex or gender. Sexual harassment (unwanted or uninvited sexual conduct) is also unlawful under the Sex Discrimination Act and employers may be liable for discriminatory acts carried out by employees. The SDA Outlaws less favourable treatment because of your sex or because you are married. An individual may exercise unconscious prejudices, due to their upbringing or perceptions, without being aware of the fact and this can amount to discrimination. It is important therefore that employers give training and raise awareness of the implication and effects of such behaviour. Section one covers discrimination in:

• Advertisement, recruitment and selection
• Terms and conditions
• Promotion and transfer
• Training and other workplace benefits
• Dismissal and redundancy.

Section three of the act prohibits discrimination due to marital status. Chief Constable of Bedfordshire Constabulary V Graham (2002).Graham was an inspector in the Bedfordshire force, and married a Chief Superintendent in the same force. In May 1999 Graham was appointed as Area Inspector in the same division that her husband commanded. In June 1999 she was told that her appointment had been rescinded. It was claimed that her appointment was inappropriate given her husband was in the division. The claims of indirect sex discrimination and direct and indirect discrimination on the grounds of marital status were upheld. The Appeals board confirmed that the decision to rescind the job had clearly been on the basis of Graham’s marital status.

The act is gender based and applies to both men and women. Under Section 7 of this act we find Sexual Genuine Occupational Qualifications, which allow the employer to make certain exceptions to this, but the employer must be able to prove genuine occupational reasons (Lockton 1996). Sexual Genuine Occupational Qualifications (GCQ) sited in the act are:

• Where the nature of the job calls for a man due to physiological reasons (strength or stamina) or, for reasons of authenticity.
• If the job needs to be held by a member of a particular sex as it involves physical contact with a person in a situation they may normally object to being carried out by a member of the opposite sex; or if the work requires intimate knowledge or handling of a person. In the case of Times V Hodgson (1981) where a male supervisor, with longer service than a female counterpart, was chosen for redundancy. The reason was that all other female supervisors had left and the employers retain one to deal with the problems of the women workers, to take them to the first aid room and to take urine samples from them when they had worked with toxic substances. The tribunal held that the employer had discriminated against the man, but that GCQ existed.
• The job involves living on the employer’s premises, there is no separate sleeping or sanitary facilities and it is not reasonable to expect the employer to provide them.
• The job is in a single-sexed institution and given the nature of the establishment, the job needs to be held by a person of the same sex i.e., prison, hospital, school.
• The holder of the job provides individuals with personal services promoting their education or welfare and therefore can best be provided by a person of the same sex. For example, an employer could employ a female social worker to run a centre for unmarried mothers or women’s refuge.
• The job involves duties outside the UK in a country whose laws and customs are such that certain duties have to be carried out by a woman.
• The job is one of two held by a married couple.

Such examples are:

• Physiological reasons-An artist’s model for a live drawing class can be requested to be gender specific.
• Privacy or decency reasons-An Toilet Attendant or Care Worker.
• The provision of education or welfare-Prison Wardens or teachers in a single sex school.

The Race Relations Act 1976

The Race Relations Act 1976 outlaws less favourable treatment on racial grounds, which means colour, race, nationality or ethnicity. The meaning of ethnicity or ethnic origin needs to be clarified. It has been held that a group has an ethnic origin if it has the certain characteristics of a long shared history and a cultural tradition. Additional relevant characteristics are a common geographical origin or descent from a small number of common ancestors; a common language not necessarily peculiar to the group; a common religion different to that of the neighbouring or surrounding community; or being a minority in an oppressed or dominant group in a large community. It has been held in the courts that Sikhs are an ethnic group, as are Jews and gypsies, but Rastafarians have been held not to fall into what can be considered as an ethnic group. Section one covers discrimination in:

• Advertisement, recruitment and selection
• Terms and conditions
• Promotion and transfers
• Training and other workplace benefits
• Dismissal and redundancy

Religious discrimination is race discrimination if religion and race are directly linked-e.g. Being Jewish. Section 5 of this act lists circumstances constituting Racial Genuine Occupational Qualifications (Lockton 1996);

1. The job involves participation in a dramatic performance or other entertainment and a member of a racial group is needed for authenticity.

2. The job involves participation as an artist or photographic assistant and a member of a particular racial group is required for authenticity.

3. The job involves serving food to members of the public in a particular setting. For example, the employing of Chinese waiters in a Chinese restaurant.

4. The holder of a job is required to provide services, welfare or education to a person of the same racial group. In the case of Tottenham Green Under Fives Centre V Marshall (1991) the employment Appeal Tribunal held that caring for children was the provision of personal services and that 84% of the children were Afro-Caribbean or African descent, a GOQ existed and the council could restrict the job to persons of the same racial group.

Specific exemptions under this act exist, so it is still lawful to discriminate in the selection of national or local sports teams on the basis of nationality, birthplace or length or residence.

Disability Discrimination Act 1995

Disability Discrimination Act 1995 makes it unlawful for an employer to discriminate against any disabled person when recruiting or in employment. The Disability Discrimination Act encourages employers not to treat their disabled staff less favourably than their non-disabled employees for reasons relating to their disability, unless the treatment is justified. In the case of Quinlan v B& Q (1998) Quinlan underwent open-heart surgery. As a result of which he was unable to lift heavy loads that was required as a general assistant in the garden centre. He was therefore dismissed. The Employment Appeals Tribunal found that he was not suffering from a disability, as he was still able to carry smaller loads, even though he was not able to carry out the duties required of him at work. Another example of case law for Disability Discrimination would be in the case of Howden V Capital Copiers (Edinburgh) Ltd (1997) Howden suffered from sharp gripping pains, which resulted in him needing to lie down, as well as having a generally adverse effect on his well being. He was admitted to hospital several times and had 3 operations. No diagnosis or cause for the pain was given. However, the Employment Tribunal held that this could be classified as a disability, because it was clearly impairing his physical well being, and was long-term, substantial and affecting his day to day activities.

Employment Act 2002

Employment Act 2002 covers women through the periods of antenatal care, care at work during pregnancy and whilst on maternity leave. It ensures that women are protected against dismissal on the grounds of pregnancy, discrimination on the grounds of pregnancy or any other detrimental treatment relating to the pregnancy. In the case of Webb v EMO Air cargo (1994) Webb was employed to cover another employee who was taking maternity leave. He was taken on 6 months before the other employee started her leave, so that she could be trained to carry out duties of the job. Two weeks after her employment started Webb found out that she was pregnant. EMO dismissed Webb, as she was not going to be available to them at a crucial time, i.e. to cover the whole period of the other employee’s maternity leave. Webb appealed to the Employment Tribunal, which supported the employers view. It held that had a, man been recruited to cover, and announced he would be on protracted leave, then EMO would also have dismissed the man. The European Court of justice overruled this finding, ruling that any dismissal relating to pregnancy was sex discrimination, and that it was wrong to make comparisons to the hypothetical man.

“The various pieces of anti-discrimination legislation in force in the United Kingdom provide an absolute prohibition on discrimination in the workplace.” With the above analysis of current UK legislation and case law, I strongly agree with this statement. With the Human Rights 1998 it sets out a list of civil and political rights, which all adhering governments are to guarantee. Some of the provisions are:

• The right to a fair hearing
• The right to respect for private and family life
• The right to education
• The right to freedom of thought, conscious and religion
• The right to freedom from unfair discrimination.

Also it should be noted employers are vicariously liable for all acts of discrimination- racial, sexual, harassment and bullying-committed to their employees which takes place during their employment. Therefore anything done by a person during the course their employment shall be treated as done by their employer as well, whether it was done with the employers knowledge or not. Employees who caries out discrimination in the course of their employment will also be personally liable. In conclusion with all the legislation in place all employers and companies etc work with a zero tolerance discrimination policy.

Bibliography

• D J Lockton, Employment Law, (Palgrave Law Masters, 4th edition, 2003/1998)
• N M Selwyn, Selwyn’s Law of Employment, (Oxford press, 15th edition, 2008)
• G Pitt, Employment Law, (Sweet & Maxwell, 5th edition, 2004)
• D McFadzean, Scots Law for Students (Dundee University Press)