Direct Discrimination
Arises where a person treats another person or group of people less favourably
in a situation because of their race, ethnic origin, gender, marital status,
disability or responsibility for dependants.
Indirect Discrimination
Consists of applying a requirement or condition which, although applied equally
to persons of all groups is such that:
a) a considerably smaller proportion of a particular group of people can
comply with it than the proportion of people not of that group who can comply
with it
b) it is to the detriment of the person or group who cannot comply with it
and
c) it cannot be shown to be justifiable on the basis of merit/ability or other
objective judgement.
Victimisation
It is unlawful to treat less favourably any person who, under equality legislation
has:
- Taken a case to an Employment Tribunal (ET)
- Has given evidence in support of a colleague at an ET hearing
- Has stated an intention to take a case to an ET or an intention to support
a colleague at an ET hearing
Instructions/pressure to discriminate
It is unlawful to:
- Give an instruction to discriminate (eg to a job centre or contractor)
- Act upon an instruction to discriminate
- Apply pressure to discriminate
- Give in to pressure to discriminate
Vicarious/Personal Liability
An employer is liable for payment of compensation arising out of an act of
unlawful discrimination committed by an individual employee
If however, the employer can demonstrate to the satisfaction of the Employment
Tribunal that reasonably practicable steps were taken to prevent the unlawful
discrimination, then the individual employee is personally liable for payment
of the compensation.
Exceptions
It is not unlawful to discriminate on grounds of race or sex, if it is a genuine
occupational qualification (GOQ) for the job, ie:
- For authenticity in a dramatic performance or other entertainment
- Where considerations or decency or privacy require the job to be held by
a person of a particular sex
- Where the job is in a single sex establishment and requires certain jobs
to be held by a person or a particular sex (eg live in warden for a hostel
for adolescent boys)
- Where the holder of the job provides individuals with a personal service
promoting their welfare and which can most effectively be done by a person
of a particular race or sex (eg counsellor who works with victims of harassment)
In addition, it is not unlawful to discriminate on grounds of race or sex if:
- The employment is in a private household or the job involves work carried
out predominately outside the UK. There are also exemptions for religious
groups, some posts in the Armed Services and private members' clubs.
- Special treatment afforded to women under Health and Safety legislation
in connection with pregnancy or childbirth (eg maternity leave) is not unlawful
discrimination against men.
Positive Action
An employer may encourage women only or men only, or members of certain
ethnic groups to apply for jobs which in the previous twelve months have been
done solely or mainly by members of the opposite sex or by people from other
ethnic groups. However, the most suitable applicant must be selected
for the post on grounds of merit.
Preference on grounds of race or sex at the point of selection would amount
to positive discrimination, which is unlawful.
DISABILITY DISCRIMINATION ACT (1995)
The Disability Discrimination Act became law on December 2nd 1996. It applies
to employees, applicants, job apprentices and people who contract personally
to provide services. Employers must have 15 or more staff. It covers recruitment,
all aspects of employment, and the provision of goods, facilities or services
to the public.
The Green Card register, the 3% Quota and designated employment become obsolete.
Definition of a Disabled Person
· There must be a physical or mental impairment
· The impairment must adversely affect ability to carry out normal
day-to-day activities
· The adverse effect must be substantial
· The adverse effect must be long term
To be protected by the legislation, a person's disability must satisfy these
criteria.
Definition of Discrimination
Discrimination occurs when a disabled person is treated less favourably for
a reason that relates to their disability and the treatment cannot be shown
to be justified on objective grounds.
Normal Day to Day Activities
Normal day to day activities include:
- Mobility, manual dexterity and physical co-ordination
- Continence
- Ability to life, carry or move everyday objects
- Speech, hearing, eyesight
- Memory or ability to concentrate, learn or understand
- Perception of the risk of physical danger
Substantial
Substantial means not minor or trivial and effects can be cumulative
Long Term
Long term means lasting or likely to last, at least 12 months.
Qualifying impairments which are likely to recur are included.
Reasonable Adjustments
Employers are obliged to make reasonable adjustments to working conditions,
the workplace, access to goods, facilities and services to take account of the
different needs of disabled persons, save where this would cause the employer/service
provider undue hardship.
In deciding what is reasonable, the following will be taken into consideration:
effectiveness, practicality, cost, disruption to the employer/service provider,
resources of the employer/service provider, health and safety and availability
of assistance. A service provider will not have to do anything to fundamentally
alter the nature of the service in question or the nature of his/her trade,
profession or business.
Reasonable adjustments could include:
- Improving access to premises or changing physical features
- Reallocating duties
- Altering hours of work
- Assigning a different place of work
- Acquiring or modifying equipment
- Providing auxiliary aids
- Modifying instructions, manuals, procedures
- Providing reader, interpreter supervision
However the requirement will not oblige the employer to make the best adjustment
possible, to reallocate key functions of the job or to provide items that an
individual could reasonably be expected to have already for personal use. Nor
will employers be required to adapt the workplace in anticipation of possibly
having a disabled applicant in the future.
Past Disability
The Act provides protection against discrimination to a person who has had
a disability, even though they may no longer be currently disabled.
Enforcement/Remedies
Enforcement will be through industrial tribunals (employment issues) or through
civil proceedings (issues relating to provision of goods, facilities and services).
Remedies will be the same as under other discrimination legislation.
EMPLOYMENT RELATIONS ACT (FAIRNESS AT WORK)
The Employment Relations Act came into force on December 15th 1999. The main
provisions are:
Maternity Leave
- The period of maternity leave to which all women are entitled has been increased
from 14 weeks to 18 weeks and is now called "ordinary" maternity
leave.
- Extended maternity leave has been renamed "additional" maternity
leave. The right to "additional" maternity leave now applies after
one year's service.
Parental Leave
- Parental leave has been introduced for employees with one year's service
in respect of children born after 15th December 1999. There is no requirement
that parental leave should be paid leave.
- The parental leave entitlement is 13 weeks for each child, up to the age
of 5, to be taken in minimum blocks of one week. A maximum of 4 weeks can
be taken per year, per child.
- Each parent can take 13 weeks, but they cannot be added together, allowing
one parent to take 26 weeks.
- Parents must give at least 21 days notice that they wish to take parental
leave. Employers can refuse particular weeks if they can show it would eg
affect their business adversely
- Adoptive parents are entitled to parental leave, for the first 5 years,
from the time a child is placed with them for adoption. Parents of disabled
children can take their 13 weeks up until the child is 18.
Dependant Leave
- Employees are entitled to reasonable time off to deal with incidents involving
a dependant. There is no requirement that this should be paid time off.
- A dependant may be a relative, but the term is defined so as to include
someone who is not an immediate relative, but relies on the employee in an
emergency.
HUMAN RIGHTS ACT (1998)
The Human Rights Act (HRA) directly incorporates the European Convention on
Human Rights into UK Law. The Articles that are most likely to have an impact
on the rights of employees in the workplace are as follows:
Article 3: Inhuman Treatment
No-one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
Article 8: Right to Privacy
Everyone has the right for his/her private and family life, home and correspondence.
There shall be no interference by a public authority with the exercise of this
right.
Article 9: Freedom of Conscience
Everyone has the right to freedom of thought, conscience and religion.
Everyone has the right to manifest their religion or beliefs, which shall be
subject only to such limitations as are prescribed by law, and are necessary
in a democratic society in the interests of public safety, for the protection
of public order, health or morals or the protection of the rights and freedoms
of others.
Article 10: Freedom of Expression
Everyone has the right of freedom of expression. The right shall include freedom
to hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers.
(Subject to limitations as in Article 9)
Article 11: Freedom of Assembly
Everyone has the right to freedom of peaceful assembly and to freedom of association
with others, including the right to form and to join trade unions for the protection
of their interests.
Article 12: Marriage and the Family
Men and women of marriageable age shall have the right to marry and to found
a family according to national laws governing the exercise of this right.
HUMAN RIGHTS ACT (1998)
Article 14: Discrimination
The enjoyment of the rights and freedoms set forth in this convention shall
be secured without discrimination on any ground such as: sex, race, colour,
language, religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.
The Other Articles are:
Article 2: Right to Life
Article 4: Slavery. No-one shall be held in slavery or servitude. No-one shall
be required to perform forced or compulsory labour.
Article 5: Right to Liberty
Article 6: Right to a Fair Trial
Article 7: Retrospective Crimes
Protocol No 1
Article 1: Every natural or legal person is entitled to the peaceful
enjoyment of his/her possessions.
Article 2: No person shall be denied a right to an education. The State
shall respect the right of parents to ensure such education and teaching in
conformity with their own religious and philosophical convictions.
Article 3: The High Contracting Parties undertake to hold free elections
at reasonable intervals by secret ballot, under conditions which will ensure
the free expression of the opinion of the people in the choice of the legislature.
NEW EUROPEAN DIRECTIVES
The EC Framework Directive (Nov 2000) introduces new legislation in the UK
against discrimination in the areas of:
- Religion or belief
- Sexual orientation
- Age
The time-scale for its introduction is three years. However, Governments can
apply for an extension of a further three years to allow them to action age
discrimination legislation.
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