Equality in the U.K and Analysis of Anti-Discrimination Law Cases - Assignment Example

Name Course Instructor Date Question 1: Equal Pay Legislation in the U.K Women have historically been paid less than men in most parts of the world for performing work of similar value. There are some categories of jobs in which only men are employed due to gender stereotypes, cultural beliefs and low-levels of education among women. Traditionally women could not have a career and therefore the entire labour force comprised of men. After the industrial revolution and advocacy from feminist groups, women found a way into the workforce. However, the work they did was undervalued and they were paid lower wages than men despite the fact that they put equal effort in the work. This generated inequity and wide gaps between the salaries allocated to the two genders.1 The inequality in pay could only be redressed through equal pay legislation. This has been done in the international level through directives issued by The International Labour Organization, declarations and conventions. Most countries in the world including Australia, the US, Canada, and The U.K have domestic legislation against sex discrimination.2Pay cannot be differentiated on basis of gender or sex .However it is permitted on basis of factors such as responsibilities, efforts, working conditions, and skills. The United Kingdom ‘s first comprehensive legislation on equal pay was The Equal Pay Act of 1970.Parliament passed the act whose main objective was to prohibit discrimination regarding conditions and terms of employment between men and women. The legislating exercise was triggered by the 1968 strike by The Ford Sewing Machinists. The Act was also passed to comply with Article 119 of the European Treaty which directed member states to observe and enforce the standard of equal pay for work of equal value between male and female workers. The Equal Pay Act of 1970 was repealed when the Equality Act of 2010 came into force. The code applies to Scotland, Wales and England. The equality Act was assented to by the queen in April 2010.Most of the provisions of The Equal Pay Act are contained in The Equality Act of 2010.I n the case of Birmingham City Council V Abdulla, the Supreme court held that equal pay can be demanded by an employee even six years after the employee leaves the job3. In The UK, the equal pay provisions of The Equality Act 2010 are applicable to all employers irrespective of the size of the business but mechanisms of avoidance of sex discrimination may vary depending on the size of the organization. Small-scale employers may not have a human resource department thus their policies maybe unwritten and informal. Their pay systems are also less intricate as compared to those of larger organizations4.Public sector employees are expressly mandated to have written policies that eradicate inequality in pay. They have to observe The Gender Equality Duty Code of Practice issued by The Commission for Human Rights and Equality. Contrary to popular opinion that the equality pay provisions are meant to protect women only, they apply to both men and women since even men can find themselves being discriminated against. Courts and employment tribunals are expected to implement equal pay law since it is derived from The European Union Law. European Union law has direct effect in The U.K and therefore the U.K has to conform to its obligations as a member of the union. Decisions of the Court of Justice of The European Union are also binding in British courts. Where there is a gap in the domestic law, a female whose equal pay rights have been violated has the liberty to base her claims on European law in U.K courts5 Article 4 of The European Union Directive on equal pay requires elimination of all forms of direct and indirect discrimination on basis of sex. Under The UK Equality Act of 2010, equal pay measures do not only apply to remuneration, they also apply to other terms of the contract such as the number of holidays given and allowances. Where a woman discovers that she is earning less or a fellow male worker has some benefits that she doesn’t have, it is the duty of the employer to explain why this is so. The employer has to prove that the difference is attributable to a fundamental factor such as skill or experience, and that the woman’s sex is not the cause of the difference6 Equal pay provisions apply to all spheres of the employment contract including salaries, bonuses, overtime compensation, shift payments, entitlement to leave, social benefits, sports and recreational activities. Sick pay, holiday pay, transfers, promotions, appointments and all other miscellaneous opportunities related to employment. Claims that are not part of the contractual terms of employment are to be addressed under the law preventing sex discrimination at work rather than equal pay claims. Like work is work which is of a similar nature to that of a male compatriot under section 65of The Equality Act 2010.The work maybe similar even though the work is different. In Capper Pass Ltd v Allan [1980] ICR 194 EAT, it was held that a woman who cooked lunch for directors did similar work with a man who prepared all three meals for employees. In Hatch v Wadham Stringer Commercials (Ashford) Ltd ET Case No. 40171/77, the court held that the female and male drivers did similar work even though the male drivers worked on weekends. The courts held that the differences were not significant to the wages. Job evaluation studies are also used to determine whether work done is of equal value. It is provided for by section 80(5) of The Equality Act and involves systematic assessment of the work done on basis of effort, skill and the magnitude of decision making involved7.Jobs may seem to be different but they may be rated to be equivalent once a job evaluation study is conducted. Evaluation studies consider the requirements of the job rather than the person doing the job. Under section 135 of The Equality Act, if a job evaluation study reveals that a woman’s work is of lower value, then a claim for equal pay will fail. Section 65(5) of The Act categorically states that job evaluation studies must be free from discrimination and must be free from assumptions and gender-stereotyping. Women can claim equal pay for work of equal value with men who are in the same employment. Under European law they can compare themselves with men in a different employment so long as the difference in pay is attributable to a similar factor. Under section 79 of The Act, a woman has liberty to compare herself with a man who is employed by another employer in the same workplace, by the same employer in another establishment or by an associated employer. In City of Edinburgh Council v Wilkinson and ors, EAT, 20/5/2010, it was held that a woman could claim equal pay with a man working in another geographical location but employed by the same local council8 .Section 71 of The Equality Act allows a woman to use a hypothetical comparator to demand equal pay where there is direct sex discrimination but there is no actual comparator to compare with. Under the Pensions Act of 1995, pension schemes are also subjected to the principle of equal pay for work of equal value9.This is to ensure that men and women are treated equally to ensure that they are able to access and enjoy the benefits of the pension scheme. Part time workers are excluded from the occupational pension scheme, a factor that was held to be unlawful and to amount to indirect discrimination. Women are not to work under inferior terms of contract or receive lower salaries on grounds of maternity or pregnancy10.This applies in calculation of pay that is related to maternity, increases in pay after maternity leave and bonuses paid during the leave. Men who are victimized for revealing their pay to female compatriots are entitled to file claims for victimization against the employer. An employer can raise various defences to a claim for equal pay; He can claim that the work done by the comparator and the woman is not equal; the comparator chosen by the woman is not authorized by the law; and that the difference in pay is attributable to a material factor which is not related to the sex of the workers. Section 69(1) of The Equality Act stipulates that employers can justify factors that result in indirect discrimination by proving that it is a means aimed at achievement of a legitimate purpose. These defences pose challenges for women bringing equal pay claims. They tend to disadvantage and marginalize women who might not see the need to litigate or who may not afford litigation fees. Unequal pay litigation therefore persists without being brought to the limelight.11`The burden of proof that pay is not equal rests on the woman making the claim. The limitation period for filing a claim for unequal pay is six months from the final day of employment which is a short and limited period. Despite the fact that equal pay legislation in The UK came into force 40 years ago, the pay gap between the genders ranks among the highest in Europe. Women constitute 64% of the lowest paid workers. The worth of women in the job market is still undervalued; discrimination is still present where male-dominated jobs earn higher bonuses. According to a judge, equal pay legislation has led to massive legislation but it has failed to eliminate unequal pay discrimination12.Lord Justice Mummery was on record protesting against the endless suits pending before tribunals since the main aim of equal pay legislation was not to trigger litigation but to eradicate discrimination in remuneration. The lord Justice was speaking in a case brought by nine women against the Audit commission for indirect discrimination in pay. A survey of wages and salaries conducted in 2010 reviewed that women would have to wait for at least 57 years before they could attain equal levels of pay with men13. Lack of equal pay policies results in monetary losses to companies due to litigation costs and financial losses to women. Coming into force of The Equality Act was a victory but it wasn’t an end in itself for at the end of the day laws are just words on a paper14.Real change happens when companies have responsible hiring and remunerating policies, responsible drafting of public policies, and empowered employees to demand for fair practices at their places of work and report instances of discrimination with full assurance that their complaints will be redressed. Employers should be mandated to carry gender pay audits as required by section 78 of The Equality Act 2010. 2(a) Cameron’s Case Race is a protected characteristic under The Equality Act of 2010 and is defined under section 9(1).Race includes the following categories: colour; nationality; and ethnic or national origins. The provision protects a person of a particular race group, persons of the same racial group; and a group of persons of the same racial group15.When Cameron who is from Scotland becomes redundant in his job and applies for a similar post in a famous grill in Central London he expects fair treatment. During the interview, an interviewer comments on his Scottish accent and the rejection letter stipulates that the grill needs someone with an authentic English accent since it specializes in English cuisine. This amounts to racial discrimination under the sub-category of ethnic or national origin since Cameron is Scottish. In Mandla v Dowell Lee [1983] 2 AC 548, Lord Fraser listed the conditions which are crucial for defining ethnic origin as: a long shared history which distinguishes the group from other groups; unique cultural tradition; common geographical origin or common ancestors; common language; common religion that may be different from that of surrounding groups; or being a minority or oppressed group within a larger community. The Scots share the characteristics listed by Lord Fraser. Cameron’s accent emanates from his Scottish national origin and therefore discriminating against him on the basis of accent amounts to racial discrimination. In O’Leary v Allied Domecq, 29/8/2000, CL 950275, the court recognized Irish travelers as a group falling within the statutory prohibition of discrimination on grounds of rape. In Boyce v British Airways plc App. No EAT/385/97, (unreported), the employment Appeal Tribunal held that the Scots and the English should not be distinguished on the grounds of ethnic origin. In Ealing London Borough Council v Race Relations Board [1972] AC 342, Lord Simon of Glaisdale held that discrimination against Englishmen, Scots and The Welsh amounted to discrimination on the basis of national origin.16In Northern Joint Police Board v Power [1997] IRLR 610, an English person who applied for a job claimed that he was discriminated against because he was not Scottish and this was held to amount to racial discrimination on the basis of national region. In BBC Scotland v Souster [2001] IRLR 150, it was held that discrimination of an English journalist in Scotland due to her English accent amounted to racial discrimination on grounds of national origin. Cameron therefore has a credible case supported by provisions of The Equality Act and case law and should therefore sue the interviewers and management of the grill in London. The employer can rely on the defence that his action was justified s a proportionate means of achieving a legitimate aim. 2(b) Monica’s Case When Monica’s employer introduces early starts and fails to give Monica alternative shifts since she is a single mother, it amounts to indirect discrimination. Indirect discrimination occurs in two major ways; when a policy applied for everyone affects people who are disadvantaged and have a protected characteristic under The Equality Act; and when a policy is bound to disadvantage a person if it is applied. Indirect discrimination occurs when a policy which applies in the same way for everybody has an effect which particularly disadvantages people with a protected characteristic. The explanatory notes of The Equality Act cites an instance whereby a woman is compelled to leave employment when an employer introduces shifts that she cannot attend because she has to take care of her children at that particular time and she is not given an allowance with which she can look for alternative child care facilities17.Such a policy puts women with children at a disadvantage as compared to women without children and men at the workplace. The employer therefore indirectly discriminates against women. Under The Employment Equality (Sex Discrimination Regulations), an employer indirectly discriminates against a woman if he applies a policy that is applied equally to a man but puts her at a particular disadvantage when compared with men or other women In London Underground v Edwards (No. 2) (1999)18, Ms Edwards was a single mother who had worked as a train driver and had worked for the company for 10 years. The shift system had allowed her to take care of her son when he was out of school. London underground introduced a new shift policy which made it impossible for her to organize child care and refused to rearrange her shifts. She has to resign and it was held that the new policy indirectly discriminated against her since she was less capable of complying with the shift as compared to her male colleagues. Monica was in similar circumstances and can file a case against The Coffee Shop owner. The employer can rely on the defence that his action was justified as a proportionate means of achieving a legitimate aim. 2(c) Dave’s Case Dave suffers from schizophrenia which is a mental disease. The condition is controlled by medication but sometimes the he breakdown and suffers from auditory and visual hallucination. The schizophrenia causes both mental and physical impairment and is thus a disability. Disability incapacitates a person from participating in routine social activities. Disability has been defined as exclusion of people with special needs from mainstream social activities19.Under section 6(1) of The Equality Act 2010, a person is deemed to have a disability if he or she has a physical or mental impairment; and when the impairment has a long-term and substantial adverse effect on the person’s ability to carry out daily activities. The difficulties encountered by the person must arise from mental or physical impairment. The cause of the impairment need not be established20. In J v DLA Piper UK LLP [2010] ICR 1052, it was held that Whether a person is disabled is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities. In Rayner v Turning Point and Ors. [2010] UKEAT 0397_10_0511, it was held that in a mental impairment case, a clinical diagnosis is not necessary since the requirement was dispensed with in 2005 and the coming into force of The Equality Act in 2010. An impairment has a long-term effect if it has lasted for at least 12 months, is likely to last for at least six months or is likely to last for the rest of the life of the person affected21 .An impairment that is likely to recur is treated as continuing to have a substantive adverse effect on the patient. In Patel v Oldham Metropolitan Borough Council UKEAT/0225/09/it was held that if an impairment which has a substantial adverse effect does not cease to exist if it is likely to recur. The test for the necessary conditions to satisfy a disability that results in impairment was set in Swift v Chief Constable of Wiltshire [2004] IRLR 540 EAT. Section 15 of The Equality Act deals with discrimination arising from disability and it improves on the prohibition of Disability provided by The Disability Discrimination Act of 1995.Per section 15(1) person (A) discriminates against a person (B) who has a disability if A treats B in an unfavorable manner due to the disability or if A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Section 15(2) provides that subsection 1 does not apply if A shows that A did not know and could not have been reasonably expected to know B had the disability.22 When the landlord tells Dave that he won’t be served in the bar because his behavior is unacceptable, he acts in a discriminatory manner since Dave’s behavior is a result of the schizophrenia. However, Dave has never discussed about his illness with anybody in the pub therefore the landlord cannot be held liable for discrimination since he did not know and could not have been reasonably expected to know about Dave’s condition. Moreover Dave’s behavior distracts the customers in the pub and interferes with the landlord’s business. The landlord’s actions can therefore be justified under section 15(1) (2) of The Equality Act in that stopping James from being served in the pub is a proportionate means of achieving a legitimate aim. The landlord cannot be held liable for discrimination. If it can be established that the Landlord knew or could have been reasonably expected to know about Dave’s condition; and if it is established that barring Dave from being served in the pub is not a proportionate means of achieving a legitimate aim, then the landlord would be under a duty to make reasonable adjustments and ensure that Dave’s mental illness does not put him at a substantial disadvantage in relation to provision of services as mandated under section 20 of The Equality Act 2010. Works Cited Benson, Chris. “Victory in Birmingham Brings Equal Pay Another Step Closer.” The Guardian.25 October 2012.Print. Buchman, Dana.” Equal Pay Legislation has resulted in ‘interminable Litigation, judge claims.”The Telegraph.06 December 2012.Print. Camilla Palmer, Tess Gill, et al., 2nd edn. ”Discrimination Law Handbook.” Legal Action Group, 2007.Print. Caroline Gooding “.Blackstone’s Guide to the The Equality Act 2010.” Blackstone Press, 2011.Print Charles Pigott. ‘Knowledge and the Employer’s Duty to Make Reasonable Adjustments’, New Law Journal, No. 152, 2002, pp. 1656–1657.Print. ‘Disability Discrimination’, IDS Employment Law Handbook, 3rd edn, May 2010.Print EHRLR ‘The Equality Bill: a sheep in wolf’s clothing or something more?, No. 4, 2009, pp. 512–537.Print. Lorna Findlay .‘Negotiating the Discrimination Minefield at Work’, New Law Journal, No. 152, 2002,pp. 506–508.Print. Oliver, Hazel” Discrimination: Perceptions, Definitions and Genuine Occupational Requirements”, Industrial Law Journal, No. 33, 2004, pp. 1–21.Print. ‘Race and Religion Discrimination’, IDS Employment Law Handbook, February 2010.Print ‘Sex Discrimination’, IDS Employment Law Handbook, 2008. Skidmore, Paul. “EC Framework Directive on Equal Treatment in Employment: Towards a Comprehensive Community Anti-Discrimination Policy?” , Industrial Law Journal, No. 30, 2001, pp. 126–132.Print. Vanessa Molyneux, ‘Discrimination Law: Age Through the Looking Glass’, Employment Law Journal, March 2002, pp. 6–8.Print. Read More