Discrimination Law

 

  

Part B (a)

Gender reassignment is included in one of the nine characteristics that are protected under the Equality Act 2010. Treating a person less favourably on account of a protected characteristic is considered as discrimination. The Equality Act outlaws discrimination based these protected characteristic. According to Section 7(1), any person who has proposed to undergo, or is undergoing, or has undergone the changing for the physiological or other attributes of sex has the protected characteristic of gender reassignment. Sheila therefore qualifies to have the protected characteristic of gender reassignment.

The case for unsatisfactory attendance is dealt by Section 16 of the Equality Act. The Section states that absence from work cannot be treated less favourably than an employer would treat absence because of sickness, injury or any other reason if not unreasonable to do so. In this case, Sigmores will have treat Sheila absence in the same way it would treat absence of injury, sickness or any other reasonable reason to be absent. Any less favourable treatment will likely be treated as discrimination on the bases of a protected characteristic. Like the ECJ ruled in P v S and Cornwall County Council, there should be “no discrimination whatsoever on grounds of sex”.

At the same time, Section 26 of the Equality Act requires employers to protect their employees against harassment on account of their protected characteristic. Engaging in unwanted conduct, like what the other member of staff is doing by referring to Sheila as a “lady boy” is harassment in light of the equality Act (see Chessington World of Adventure Ltd v Reed). On notice of a harassment claim, the management is required to take reasonable steps, like disciplining the culpable staff. Employers who fail to take reasonable steps to protect their employers are liable for harassment claims.

Since Sheila filed the claim on 4th January 2014, she is on the borderline of the 3 months limit required to file claims of this nature. The possible remedy, in the case of unsatisfactory attendance is a declaration as to the rights of Sheila and Sigmores, possibly to confirm that Sheila has the right to be absent just like the case of sickness and injury cases. In the case of harassment, the tribunal may order compensation or order Sigmores to make appropriate recommendations to obviate the harassment.

Part B (b)

The law on equality does not only protect the employed, it also covers the entire recruitment process, including job advertisement. Discriminating a potential applicant on account of a protected characteristic is unlawful unless the employer can objectively justify it. In addition, the law also outlaws job advertisement that states preference for a particular religion or sex.

Stating a particular religion or sex is considered as direct discrimination.  It is also unlawful to place an advert on a newspaper accessible only to a particular religion as other groups will have much less opportunity to see it. In that case, Sigmores is likely to be liable for a combined discrimination claim on the ground of the two relevant protected characteristics. The interview question targeting disabled applicant is also likely to be found unlawful. The way and where Sigmore has placed its advert, and has structured the interview question has creates the impression to discriminate. The reason that Sigmore has mentioned for its discrimination is likely not to be objective since the ability to relate to a female Muslim is not only restricted to a female Muslim. Smith should file the claim within three months of noticing the violation or any other time as the Employment Tribunal may think just and equitable. If Smith files the claim, the Employment Tribunal is likely to make an appropriate recommendation, probably order a re-advisement that respects the principle of equality and diversity.

Part C

 Since the enactment of the Equality Act 2010, there have been complaints from employers that observing the new equality laws has become a burden to businesses. The employees rights protected under the Act are seen to have added fuel to what some sees as a compensation culture taking hold in Britain. Critics of the new anti-discrimination legislation claim that what was a genuine measure to protect employees from workplace abuses has become a haven for scurrilous claimants and greedy lawyers (Holland and Burnett, 2014, p103). However, amid this debate, it is important to note that the Equality Act has not significantly changed the anti-discrimination laws as claimed. It has merely consolidated the pre-existing anti-discrimination laws, such as the Sex Discrimination Act 1975 and Race Relation Act 1976.

 The proponents of the repeal of the Act are buoyed by statistics that indicate a rise in employment claims. They claim that the reverse of the burden of proof in discrimination claims, lack of definite limit for filing claims and unlimited compensation have all worked against the interest of running a business (Fredman, 2011). In addition, the employer claims that the idea behind the establishment of the Employment Tribunal was to create a judicial process that was less costly and not as complicated as the court process. To the chagrin of employers, tribunals have become equally expensive, not to mention the time and the business repute that is lost while defending discrimination claims.

Although too much regulation has never been good for business, the anti-discrimination law may not be as worse as the employers want to frame it. According to the employment statistics from the Tribunal Service, employment claims, including discrimination claims, have in fact been declining (Ministry of Justice, 2013). In contrary to common belief, the tribunal service reports that most of the claims have been decided in the favour of the employer. There is also a tendency to portray discrimination claims as having no reward limits, but apart from disability discrimination claims, the rest of the rewards are fairly less than £5000 (Howse and Damiral, 2013). The few huge penalties reported on the media are exceptional and isolated cases.

This, however, does not pre-empt the need for reforms. The introductions of tribunal fees are justifiable. The fees eliminate the easiness with which an employee could have brought a claim. Spurious claims often put the employer at a disadvantage where it had to incur considerable expense and waste time in defending itself.

 

 

List of References

Chessington World of Adventures Ltd v Reed [1997] IRLR 556 EAT

Equality Act 2010

European Convention on Human Rights

Fredman, S (2011) Discrimination Law. Oxford: Oxford University Press

Giles, H (2011) Stop Legal Parasites Feeding on Small Business, [Online] < http://www.thetimes.co.uk/tto/opinion/columnists/article2861547.ece> (Accessed on April 30, 2014)

Holland, J & Burnett, S (2014) Employment Law. Oxford: Oxford University Press

Howse, M & Damiral, E (2013) Reducing the burden on business – changes to employment law in the UK? London: Morgan, Lewis & Bockius LLP

Ministry of Justice (2013) Tribunals Statistics Quarterly. London: Stationery Office.

O’Dair, R (2011) Who are you calling a parasite? An Employment Lawyer Fights Back. [Online] http://www.thetimes.co.uk/tto/law/article2877347.ece (Accessed on April 30, 2014)

P v S and Cornwall County Council, Case C-13/94, [1996] IRLR 347

Race Relation Act 1976

Sex Discrimination Act 1975

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