The Effect of EU Law on Discrimination Law in the UK - Case Study Example

THE EFFECT OF EU LAW ON DISCRIMINATION LAW IN THE UK BY (Names) The Name of the Class (Course) Professor (Tutor) The Name of the School (University) The State/City where it is located The Date The Effect of EU Law on Discrimination Law in the UK Introduction Every nation has its laws governing employment terms, rights of employees and the way in which people are treated or managed in their jurisdiction. Our society has different people with some having characteristics, attributes or affiliations that do not put them at an equal competitive level with others. Groups with less competitive attributes need to be considered to offer them a level platform with others in their day to day activities. Otherwise, such groups may be taken advantage of, mistreated, or undermined by others. Therefore, different nations have similar to different laws that dictate the manner in which individuals possessing protected characteristics should or should not be handled. In the United Kingdom (UK), the major legislation protecting such groups is the Equality Act 2010. The European Union (EU) lays the foundation for laws applied in its member countries through treaties agreed upon during their conventions. The EU laws and directives on discrimination are based upon the Amsterdam Treaty of 1997 (Mercat-Bruns, 2010). The Treaty expanded the antidiscrimination scope to include, religion or belief, sex, age, racial or ethnic origin, or sexual orientation and disability. In the newly expanded scope, the directives adopted included the Racial Equality Directive 2000/43 concerning ethnicity and race, Employment Equality Directive 2000/78 encompassing age, disability, religion and sexual orientation, and Recast Directive 2006/54 that incorporates sex discrimination during employment (Mercat-Bruns, 2010). From these directives arose discrimination grounds that were also embraced in the Equality Act 2010. This typifies the significance of EU laws on UK discrimination laws. Equality Act 2010, European Laws and their significance The Act ensures that the rights of individuals are upheld; that opportunities are available in equal measure to all; simplifies and fixes previous statutes, and provides a modern framework pertaining discrimination laws (East Sussex County Council, 2013). The Act replaced the laws on discrimination with a single Act. Public sector equality duties that included disability race and gender were replaced by nine "protected characteristics" which include disability, age, gender reassignment, religion or belief, maternity and pregnancy,civil partnership and marriage, race, sexual orientation and sex (Equality Act 2010, s.4). The Act also makes provisions for prohibited conduct such as discrimination, harassment and victimization. Prohibited conduct Discrimination. Equality Act 2010 s. 13(1) defines the conditions that one would be considered to have directly discriminated against another. In respect to a protected characteristic, if a person A treats another person B in a manner different from how the person A treats others, then A is said to have discriminated against B. A typical example is the case of "Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum Voor Jong Volwassenen (VJV-centrum) [1990] ECR 1-03941" where the board of management of VJV-centrum refused to appoint a pregnant woman (Curia, 2009). This was even after the committee had deemed her the best for the job regardless of her pregnancy. A standard test is now available for ascertaining direct discrimination. This is the ‘but fo’ test that arose from the James v Eastleigh Borough Council (EBC) [1990] IRLR 288. The case involved Mr. and Mrs. James, who were both 61 years old wanting admission into EBC swimming pool. However, Mrs. James was admitted free while Mr. James had to pay since EBC found Mrs. James’ age above a woman's pensionable age of 60 and Mr. James below an equivalent age of 65 for a man. Lord Bridge said the pensionable age expression was not as objective enough as the ‘but for’ test, that is, “would the complainant have received the same treatment from the defendant but for his or her sex”. The answer was no. Therefore, using the pensionable age criterion was deemed unlawful even if the motive was harmless. For the ‘but for’ test to hold, less favourable treatment has to be established first. The "reason why" test is invoked to define objectively the motivation of the respondent or the employer in the manner in which the alleged discriminatory act was perpetrated especially in not so obvious discriminatory acts. Another form of discrimination is combined discrimination that incorporates dual protected characteristics as elaborated in Equality Act 2010, s.14. In this scenario, an individual is treated less favourably compared to another individual without the shared relevant protected characteristics. Given an alleged mistreated individual B, and an alleged mistreating individual A, B will have to prove that the direct discrimination is associated with each of the characteristics if taken separately (Equality Act 2010 s.14(3). However, the Act does not explain compensation for such form of discrimination, that is, if the appellant will receive double compensation for both characteristics. Indirect discrimination is another form of discrimination described in the Act. It is said to occur when an apparently neutral, criterion, provision or practice puts a person with any of the protected characteristics at a disadvantage relative to others except if this criterion, provision or practice is sufficiently justified by a well-founded aim achieved through appropriate and necessary means (Equality Act 2010 s. 19). A case law example of indirect discrimination is the case Ursula Vob v Land Berlin [2007] ECR 1-10573. In this case, Land Berlin had employed Ms. Vob as a teacher on part -time basis. Most of the employees on part-time basis were female. The employees on part-time basis were been paid less per hour when working overtime compared to those on full time basis such that even if the part time employees, who were mostly women, worked for a total number of hours equal to that of a full time teacher, they still ended up receiving less pay. The employer, Land Berlin, even though did not directly discriminate against the female sex, the company was deemed to have sexually discriminated against women since there were no objective factors that were wholly unrelated to sex discrimination that would justify the difference in treatment. Employees are further protected against their prospective employers when seeking appointments in Equality Act 2010, s.39(1). Subsection 2 of the same section protects the employees against discrimination as to the terms of employment and access to promotion, training and transfer opportunities. This protection also covers contract workers (Equality Act, 2010, s.41). Harassment. It is defined by section 26 of Equality Act 2010. An individual B is said to be harassed by an individual A if, about a relevant protected characteristic, "A engages in unwanted conduct" with the intention or result of violating B's dignity, or causing B to be intimidated, humiliated, degraded, or creating a hostile, offensive environment for B. A is also said to harass B if A treats B in a less favourable manner after B refuses to submit to the unwanted conduct. The circumstances of the perceived unwanted conduct, B’s perception and the feasibility of the conduct to cause such an effect will all be considered. This is important since the individual B may be relating or interacting with A in a manner that B would not feel harassed. Equality Act 2010, S.40(1) guarantees protection to employees against harassment by their employers. In addition, the same subsection also offers protection to applicants for employment against harassment by their prospective employers. Victimization. Section 27 of EA 2010 defines the circumstances under which a person is considered to have been victimised. First, a protected act is explained as any proceeding under Equality Act 2010, or providing any information as a witness in relation to any of the proceedings, or engaging in any other omission or act for the purpose of the Act, or alleging that an individual has contravened the Act. However, the section excludes giving of false information, evidence or a false allegation if any of these is made insincerely or in bad faith (Equality Act 2010, s.26(3). Therefore, an individual A victimises an individual B if the former subjects the latter to a disadvantage because B does or is believed to have done a protected act (Equality Act 2010,s.26(1). This section can protect an employee who servers as a witness in a court of law against the employer after the employer has been accused of contravening the provisions of the protected characteristic. Section 39(3) of the Act also protects a job applicant against victimization by a prospective employer as to the terms of employment or decision whether to employ the applicant or not.The same section also accords protection to an employee against victimization by an employer as to the terms and access to opportunities such as promotion, training or transfer in the course of the employee's employment tenure. This protection also extends to dismissal or subjecting the employee to any other disadvantage or detriment. The European Union (EU) through article 11 of the Council Directive 2000/78/EC allows member states, UK being one of them, to introduce necessary measures into their legislation to protect employees who may be victimised after the employee lodges a complaint regarding unequal treatment as it is provided in the provisions of the Equality Act 2010. Since it is a directive whose provisions have to be adopted, it gives a member state the opportunity not to leave any legal loopholes in the various laws relevant in protecting the employee against unequal treatment. Protected characteristics Age. Section 5 of the Equality Act 2010 defines age as a protected characteristic. According to the Government Equalities Office (GEO) (2013), the age discrimination does not apply to children with ages below 18 years. According to GEO, an individual A discriminates against another B if A treats B differently and unfairly because of B’s age. Conditions under which age discrimination is allowed are set out by exception, objective justification or positive action (GEO, 2013). The Act contains general exceptions that apply to age discrimination. An instance is where there is another legislation that lawfully allows difference in treatment among people due to their age. This includes age limits on state benefits, in adoption, jury services and when offering free bus passes for legit pensioners. Positive action let's service providers and employers treat people differently according to their age. This is possible when the action or decision being taken compensates for or forecloses the shortcomings experienced by, or caters for the specific needs of such age groups. It is also allowed when it is to encourage underrepresented people from a given sex to take up available opportunities. An employer is allowed to utilise positive action when attempting to enhance diversity among the employees. If positive action is challenged in a court of law, it should be objectively justified. Objective justification requires that an organisation, employer or business which has policies that may be classified as age discriminatory, and the policies do not measure up to positive action, should show or demonstrate a good reason for maintaining the policies when challenged. The organization shall have to prove that “it is a proportionate means of achieving a legitimate aim” (Equality Act 2010, sch.9, s.1(1). Outcomes that are in the interest of the public, or are socially positive or beneficial to the community are said to be legitimate aims. Examples include policies to provide more peace and tranquility to people of a particular age. A legitimate aim should be achieved via proportionate means which means that the business or employer shall have to show that there is not a better impartial way of getting their legitimate aim or desired outcome. The employer shall also have to demonstrate that their policy is suitable and significant in achieving the legitimate aim, and that it offers more benefits than the downside of undermining a particular age (GEO, 2013). Disability. A person is described as disable if the person is afflicted by physical or mental impairment that has a long-term substantial impact on a person's ability to undertake normal daily activities (Equality Act 2010, s.6). This provision is applicable to an individual who has or has had a disability. This raises questions regarding the validity of a previously disabled person claiming allegations of discrimination against a person such as an employer even after the disabled person has fully recovered from the disability and can be deemed normal mentally or physically. Since the determination of whether the disability in question shall recur does not guarantee surety of its recurrence, an employer may be forced to agree to the provision of disability unfairly. Schedule 1 of this Act specifies adjudicating bodies that are responsible for determining the disability of a person. Such bodies include courts, tribunals or any other specified person other than the two. Medical conditions such as cancer and HIV infection are also specified as disabilities. Council Directive 2000/78/EC provided the basis for some provisions in the Equality Act 2010 in relation to equal treatment in employment regarding the protected characteristics. Article five of the Council Directive requires employers to avail "reasonable accommodation" for a person with a disability. This entails employers taking necessary measures to enable such a person to participate in, have access to, or to undergo training or advance in employment unless by undertaking that measure the employer bears a disproportionate burden. The burden is only disproportionate if it is not sufficiently remedied by provisions present within the disability framework of the concerned member state ( art. 5). Sex. Section 11 of Equality Act 2010 refers to a person having the protected characteristic of sex as a woman or a man, and a person who shares the protected characteristic is a person of the same sex. Chapter 3 of the Act makes provisions for equality of terms that include sex equality. For sex equality provisions to apply, a person of one sex should share the same work as the comparator of the opposite sex. The works done by the persons of the opposite sex are comparable if they are equivalent or of equal value, they exert equal demand to both persons, and do not have any such important differences. Article 1 of the Council Directive 76/207/EEC directs equality in handling men and women in the course of employment access, promotion and other employment related activities but allows the member states to exclude certain appropriate occupational activities from the restrictions of this directive. It is, therefore, evident that member states' laws on discrimination are in accordance with the EU Council Directives. Gender reassignment. A person is said to have gender reassignment as a protected characteristic if the person suggests going through, is or has gone through a medical process or any other process to change a person's sex to become transsexual (Equality Act 2010, s.(7). Race. This incorporates nationality, ethnic or national origins and colour. Section 9(2) of Equality Act 2013 defines a racial group as a person with the protected characteristic of race. The section also covers persons with more than one distinct racial groups. The Act is fair enough since it, by order, allows a “Minister of the Crown” to “provide for caste” to be a racial aspect, and through amendments, except or not to except the application of the provision of this Act to caste. Otherwise, the caste race group would have been left completely vulnerable to racial discrimination. Religion or belief. Section 10 of the Equality Act 2013 defines religion as ‘any religion” and belief as “any religious or philosophical belief”. The Act is very brief on religion and belief and this may create some weaknesses and allow exploitation by unscrupulous employers. Marriage and civil partnership. Section 8 of Equality Act 2010 makes provisions that protect a civil partner or a married person against unequal treatment on the basis of one’s association in a marriage. Sexual Orientation. Section 12 of Equality Act 2010 offers protection for an individual who is sexually attracted to individual(s) of the same sex, opposite sex or either sex. Employers are expected to make policies that guide the running of their organizations or business that do not undermine the rights of any employee as enshrined in the various laws and regulations. The Equality Act 2010 provides for an employment tribunal (ET) to determine applications or complaints arising due to conflicts between employees and employer over claims such as unfair dismissal or discrimination, redundancy pay, and other breaches on employment rights (s.120). After filling a case on ET, and an employer is found to have breached the provisions of a given legislation on equality in treatment, the tribunal is empowered to instruct the employer to change their culture or policies where necessary thereby protecting other employees under the same employer from being subjected to the same mistreatment. If either parties feel justice is not served at the ET, they can still file an appeal with the Employment Appeal Tribunal (EAT) but the petitioner must identify a fault in the legal reasoning that led to the original decision (HM Courts and Tribunal Service, 2013). Legislations repealed or amended by the Equality Act 2010 Amendments. The amended legislations are highlighted in schedule 26 of the Equality Act 2010. The Employment Act 1989 (EA 1989) has its section 12 amended in subsection (1) to substitute “requirement or condition [RC]” with “provision, criterion or practice [PCP]”. These amendments were adopted after Article 13 of the European Community introduced a more relaxed and broader test for indirect discrimination” (Barnard, 2008, p. 40). An example of a case where the changes were significant is in the British Airways v Starmer [2005] IRLR 862 case where a British Airways (BA) female pilot challenged BA’s rejection of her request to work half of the full time hours, a challenge that would probably not be an RC but it was deemed PCP. Equality Act 2006 had Sections 8, 10, 11, 14, 16, 21, 27, 28, 32, 34 and 35 amended. Paragraph (d) of subsection (1) had “equality enactments“ substituted with “Equality Act 2010”. Section 24 had 24A inserted after the section. Sections 25, 26, 33, 43 and 81 were omitted. Part 2 and 4 of the same Act were also omitted. Revocations and Repeals. Sex Discrimination Act 1975, Sex Discrimination Act 1995, Equal Pay Act 1970 and Race Relations Act 1976 were wholly repealed. Section 17(9), section 18 and section 19(10) of the Local Government Act 1988; sections 1-7 and section 9 of the Employment Act 1989; Schedule 5, paragraph 5 of Social Security Act 1989; section 1 of Sex Discrimination Act 2002; section 6(1)(b) and (2) of Civil Partnership Act 2004; and sections 25, 26, 33, 43, 81 and 94(3) of the Equality Act 2006 were all repealed. Regulations such as Occupational Pension Schemes Regulations 1995 and 2005, Employment Equality Regulations 2003, Disability Discrimination Act 1995 Regulations 2003, Employment Equality Regulations 2006 (except Schedules 6 and 8), Equality Act Regulations 2007 and Sex Discrimination Regulations 2008 were wholly revoked. Major issue facing Employment Discrimination Law Equal pay in employment is an important issue facing the UK government particularly the ET. There have been numerous cases in the tribunals regarding equality in pay. For instance, Stefan Cross is known to have launched thousands of such claims against local councils in North East England in the past ten years (Barnard, 2008, p. 49). This was because most women had been underpaid against the provisions of equal pay for men and women for work of equal value. The trade unions of the council workers had difficulties balancing the competing interests of ensuring equal pay for women doing similar work of the same value as men, and the men whose pay was likely to be reduced to level that of women doing work of equal value. The prospective reduction in pay was also against their goals of improving workers’ pay in the future (Barnard, 2008, p. 51). In striking a balance to ensure equality of pay, the protected pay of other workers may be savaged in situations where the council does not have funds adequate to immediately effect the changes. Alternatively, in deciding to implement a stepwise pay increment for women to level that of women, the women may still claim unequal pay during the transition period of pay increment. This equal pay moratorium may, however, not meet European legal requirements (Barnard, 2008, p.52). The conundrum is bound to affect many organisations or business faced with a similar situation. Employment Rights Act 1996 and its significance. This Act has various provisions that accord employees and employers protection in the course of performing their work related responsibilities. Part IX section 86 of the Act requires that an employee or employer should give a notice of termination of employment at a prescribed that time before the employment is terminated by either party. The employer is required to give a not less than two weeks’ notice to an employee who is in continuous employment for less than two years. If the employment period is at least two years but less than 12 years, the notice period is longer by a week for each year above the two years, and if the employee has been employment for more than 12 years, the notice should not be less than 12 weeks. If an employee is terminating a continuous employment contract of equal to or more than a month, the notice to the employer should not be less than one week. Therefore, in this section, both the employer and employee are protected. However, the time of issuance of the notice of contract termination from an employee to an employer may be quite short, and may not give the employer sufficient time to find a replacement if necessary especially if the employee has been employed continuously for at least two years. Section 92 of the same Act provides for the right of an employee to a written statement stating the reasons of dismissal. If an employee is denied the statement after a request, or feels the reasons for termination given are false or inadequate, the employee may present a complaint to the ET (s. 93). Section 94 of Part X of the Act grants employees the right to fair dismissal by the employer including launching a complaint with ET in cases of unfair dismissal. If an employee’s dismissal is based on redundancy, the employee has a right to a redundancy pay as per section 135 of the Act. To claim a redundancy pay, the employee must have been in continuous employment for at least two years. The pay is not applicable to persons employed in public offices, government of an overseas territory, and domestic servants (sections 159-161). The Charter of fundamental rights of the European Union recognises and establishes human rights that ensure freedom, dignity, equality, solidarity, citizens' rights and justice for citizens of member states. In particular, Article 21 of the Charter prohibits any discrimination based on the protected characteristics highlighted above and discrimination on the grounds of nationality. Therefore, the Charter leads in advocating for non-discrimination and equality supported by the various national legislations. Conclusion European Union laws lays a foundation for the formation of different laws of the respective member states of the European. The Treaty of Amsterdam is a significant source of Council Directives that have to be adopted my member states and incorporated into their laws or modify their legislations to be in line with the directives. Laws on discrimination have ensured that discrimination is checked, and equality is maintained in the public and private sector especially the Equality Act 2010. However, even with the laws in place some employers with questionable etiquette may still take advantage of employees who are unfamiliar with their rights. References Barnard, C., 2008. New developments in employment discrimination law. The UK report, Netherland: Kluwer Law International. Charter of fundamental Rights of the European Union. OJ 2010/C83 Consolidated version of the Treaty Establishing the European Community. OJ C325. Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. OJ L039. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. OJ L303. Employment Rights Act 1996. London: HMSO Equality Act 2010. (c.15). London: HMSO. Governement Equalities Office, 2013. Equality Act guidance. [Online] Available at: https://www.gov.uk/government/publications/equality-act-guidance [Accessed 14 March 2014]. HM Courts and Tribunal Service, 2013. Justice. [Online] Available at: http://www.justice.gov.uk/tribunals/employment-appeals [Accessed 17 March 2014]. Mercat-Bruns, M., 2010. Introduction to EU legislation and definitions of key concepts, Paris: CNAM Sciences Po. Cases British Airways v Starmer [2005] IRLR 862. Available at: http://www.bailii.org/uk/cases/UKEAT/2005/0306_05_0607.html [Accessed 18 March 2014]. Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum Voor Jong Volwassenen (VJV-centrum) (1990) ECJ. Available at: http://curia.europa.eu/juris/showPdf.jsf?docid=96046&doclang=EN [Accessed 19 March 2014]. James v Eastleigh Borough Council (EBC) [1990] IRLR 288. Available at: http://www.bailii.org/uk/cases/UKHL/1990/6.html [Accessed 16 March 2014] Ursula Vob v Land Berlin [2007] ECR 1-10573. Available at: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006CJ0300 :EN:NOT [Accessed 18 March 2014]. Read More