Analysis of Equality Act 2010 - Essay Example

?Business law Part Qn Section 19 of the Equality Act defines indirect discrimination as an act of discrimination by a person (A) by application of a discriminatory provision, criterion or practice that militates against another person’s (B) protected characteristic. Section 19 (2) lays down four possible situations that can be called as four components of indirect discrimination. They are (a) a provision, criterion or practice is applied by A on other persons which B does not share with. (b) it (provision, criterion or practice) places or likely to place persons of characteristics shared by B at a particular disadvantage on comparison with those whose characteristics B does share with. (c) the provision, criterion or practice puts or likely to put B at that disadvantage and (d) whereby A cannot justify his actions in pursuit of achieving a legitimate aim (legislation.gov.uk, n.d.). Thus, indirect discrimination can arise out of an employer’s policy applicable to everyone in the organization but happens to put a particular protected characteristic at a disadvantage. Sex is one of the nine protected characteristics under Equality Act. Indirect discrimination described above is a prohibited conduct in relation to the protected characteristics, subject to exceptions. The acts of discrimination as described above are applicable to persons or an individual with a protected characteristic. It also includes perceived discrimination. To cite an example of indirect discrimination in respect of a protected characteristic of sex, it is an indirect discrimination on the grounds of sex to impose a condition on a woman employee having young children to be cared for, to work in night shift. However, an employer can justify his policy if he could show that he has acted reasonably during the course of his business as a proportionate means of achieving a legitimate aim which might be a lawful decision. If the sole aim is to reduce cost, it cannot be a lawful decision. By proportionate is meant being fair and reasonable demonstrating that employer has already looked for less discriminatory alternatives to the particular decision made. An example of lawful indirect discrimination is requiring employees to work on the afternoon of a Friday during winter for the purpose of analysing stock prices to be collected from American finance market. Since stock prices would arrive late in the afternoon, requiring an employer not to insist employees to sit late in the afternoons of winter seasons is not justified since it is a legitimate need for the business to get stock prices for which there are no alternatives (ACAS, 2011). It was held in British Airways v Starmer (2005) that the employer erred in requiring a full time woman pilot to work 75 % part time as against her request to work on 50 % of the time to take care of her children since it amounted to act of sec discrimination having the potential to affect a significant portion of women workforce and the employer failed to provide evidence to justify application of provision or practice. (Painter & Holmes, 2012, p. 259) . Qn 2. This is a case of harassment defined in Equality Act 2010 and EU Directive 2000/78 as an unwarranted or undesirable conduct which has the potential of causing threatening, hostile, degrading, and humiliating or offensive environment or has the effect of violating dignity. This can take place in relation to any of the protected characteristics. Sexual orientation is one of them. The definition demonstrates the severity of the problem of harassment at workplace that pollutes the workplace environment. It is a prohibited conduct as per section 26 of the Equality Act as described under sub section 26 (1) (legislation.gov.uk, n.d.). Equality law allows other employees to complain even if the harassment is not directed at them (ACAS, 2011, p. 2). Thus Allan can file a complaint before the Employment Tribunal within six months of date of commission of harassment extended from three months as decided by House of Lords as a result of series of appeals filed. A complaint later than this time limit can be heard by the tribunal only if it is justified. If the act of harassment is a continuing one as in the case of George, time limit starts the date of last commission of the offense. The employer is vicariously liable for the act of his employee supervisor (Kelly, et al., 2011) Qn3. What Jenny’s supervisor instructs her to do is an act of racial discrimination which is a prohibited characteristic and harassment based on which is a prohibited conduct. Hence, this is illegal. Law entitles employees not to follow instructions if they are outside the scope of employment contract. This principle was established long ago in 1862 in the case Price v Mouat wherein it was held that a highly paid employee could not be asked to do manual work. There are equitable situations where an employee is justified in refusing to obey instructions of the employer such as a) obeying will put personal safety at risk, b) obeying an illegal instruction and c) employer’s instruction is in bad faith. Racial harassment and racial discrimination are both illegal under the Equality Act 2010 and instructions to that effect on the part of the supervisor are illegal and instructions in bad faith (Taylor & Emir, 2012). Jenny’s dismissal therefore is unfair dismissal and she is entitled to be reinstated. Equality Act 2010 protects customers(service user) against harassment by the employer (service provider) or his employees. Here, the supervisor orders Jenny not to serve black customers. As it amounts to racial discrimination, customers are entitled to seek remedy under the Act as service users, for being discriminated against their protected characteristic of “Race” (LSE, n.d.). Part 2 The obvious remedy open to them is a claim for constructive dismissal provided they can establish that employer’s (here manager’s) action satisfies the two tests of contract and reasonableness. Claims for constructive dismissals will be scrutinised for contractual terms test and reasonableness test. While contract test is to ascertain whether the employees’ resignations arose as a result of breach of the terms of contract of employment, reasonableness test requires examination whether the actions of the employer were so unreasonable as to warrant resignations by them. Whether or not there is a condition in the contract enabling the employer to change the conditions of employment such as transferring them from one department to another as and when required, they must undergo the grievance procedure with the employer and prefer claim before the Employment Tribunal only if their grievance is not sorted out. In this case, with a view to cutting costs, manager asks Phil to be at the reception desk without taking into account of the preparatory work Phil had to do for an event scheduled that evening. Ela, his co-worker who intervenes in the defence of Phil, is also rebuked by the manager. Although his intentions might be good in the best interests of the hotel, his crude approach and insulting Phil and Ela in front of their junior employees is unbecoming of a manager. Hence Phil and Ela must prefer redress of their grievances before the management and demand regret or apology by the manager so that they continue to work without being asked to do work other than what they have been engaged for. In Western Excavating (ECC) Ltd v Sharp (1978), the test of contract was described as employee could treat himself as discharged if the employer was guilty of conduct that would amount to breach of contract. Unilateral alteration of the contract such as in the case of Phil and misbehaviour with Ela can give right of claiming constructive dismissals. In Browne v Flangan Ltd (1996), change in working hours by the employer that significantly reduced their working hours could be a valid ground for claiming constructive dismissal. The reasonableness test requires that although what the manager asked Phil might be within the terms of employment, the way in which he behaved with Phil was unreasonable that could bring contract to an end. This applies to Ela as well since the Manager has also rebuked her (Sheehan, n.d.). In Amnesty International v Ahmed (2009), employer’s conduct which is serious enough to lose trust and confidence by the employee can constitute a repudiatory breach of contract for justifying constructive dismissal (Smith, Baker, & Smith, 2010). Further, employees must leave the job immediately as otherwise employer can say that employees have accepted the conduct or treatment (Gov.UK, 2013). There is also another view that they can wait till they get another job before resigning. On the other hand, a case was decided in favour of the employer. In White v Reflecting Roadstuds Ltd (1991), the employee was shifted from mixing plant to pressing division as he was too weak and aged to do the job at the mixing department. But it resulted in reduction in pay. Although he had once asked for change of duty to a lighter work, he resigned and claimed constructive dismissal for reasons of fundamental breach of contract even though there was a term in the contract of employment for change in work to improve efficiency at the worksite. The Employment Appeal Tribunal held that in spite of there being an enabling clause, a purely capricious decision would not be upheld without sufficient ground for asking employee to do so. A reduction in pay also would not be breach of contract if it resulted in loss of income (Moffatt, 2011). In G Keogh v Green Isle Foods (2007), the claimant had been transferred to another department with lighter duties followed by his sickness leave. His constructive dismissal claim was dismissed for the reason that he did not invoke company’s grievance procedure and failed to establish that he had no other option but to resign as he could not continue with the employer under all reasonable circumstances. Phil and Ela are eligible to bring in their claims before Employment Tribunal after unsuccessful outcome in their applications for grievance redress as they have completed minimum two years of continuous service regardless of their service being full-time, part-time. Burden of proof is on them to prove their resignations are justified. (Sheehan, n.d.). Tony 56, with 15 years of continuous employment has been transferred to a location 40 km away from his present location. He has been asked to relocate within 72 hours. It was held in Nolan v Hermans Ltd (1987) the worker’s transfer to another location could not be sustained due to unilateral change in the location of employment where the female worker had been employed for more than ten years. In this case Tony has been transferred unilaterally, breaching the employment contractual terms. It is alleged that Tony has not been given the handbook which the employer is bound to give as a form of written contract as per section 1(1) of the Employment Rights Act 1996 (Legislation.gov.uk, 1996) when he begins his employment. The terms of contract include place or places employees are required to work. Though this requirement giving the statement may have come after he entered into employment, employer is obligated to give it as and when new provision comes into force. Apart from this lapse, the employer is not entitled to unilaterally change the terms of contract although change in location is permissible. The short notice of 72 hours and distance of 40 KM weigh in favour of Tony to claim constructive dismissal and claim compensation after he makes formal grievance application to the employer and only if it is turned down. In Jones v. Associated Tunneling Co. Ltd. (1981), transfer to a location from where the employee cannot return home after work on daily basis was held to be a breach of implied terms of employment and therefore employee was held to be entitled for claiming constructive dismissal. This apart, Tony has been given short notice for relocation which can also be one of the grounds for claiming unfair dismissal. References ACAS. (2011). The Equality Act- What's new for employers? Retrieved Jan 9, 2013, from www.acas.org.uk Amnesty International v Ahmed, UKEAT/0447/08/ZT (Employment Appeals Tribunal 2009). British Airways v Starmer , IRLR 863 (Employment Appeal Tribunal 2005). G Keogh v Green Isle Foods, UD 516/07 (Employment Tribunal 2007). Gov.UK. (2013). Gov.UK. Retrieved January 11, 2013, from Guide: Dismissal: your rights : https://www.gov.uk/dismissal/unfair-and-constructive-dismissal Jones v. Associated Tunnelling Co. Ltd., IRLR 477 (Employment Appeal Trbunal 1981). Kelly, D., Kelly, D., Hayward, R., Hammer, R., Hendy, J., Haward, R., et al. (2011). Business Law . Oxon: Taylor & Francis . Legislation.gov.uk. (1996). Employment Rights Act 1996 C 18. Retrieved January 13, 2013, from Legislation.gov.uk: http://www.legislation.gov.uk/ukpga/1996/18/part/X legislation.gov.uk. (n.d.). Equality Act 2010 Chapter 15. Retrieved January 9, 2012, from http://www.legislation.gov.uk/ukpga/2010/15 LSE. (n.d.). Equality Act 2010 What does it mean for LSE? Londoin School of Econimics and Political Science . Moffatt, J. (2011). Employment Law (3 ed.). Oxford: Oxford Univesrity Press. Nolan v Hermans Ltd , UD 43/87 (Employment Tribunal 1987). Painter, R., & Holmes, A. (2012). Cases and Materials on Employment Law (9 ed.). Oxford: Oxford University Press. Sheehan, S. (n.d.). Constructive Dismissal – A Last Resort Remedy. Certfied Public Accountants . Smith, I., Baker, A., & Smith, I. (2010). Smith & Wood's Employment Law (10th Edition). Oxford: Oxford University Press. Taylor, S., & Emir, A. (2012). Employment Law: (3 ed.). Oxford: Oxford University Press. Western Excavating (ECC) Ltd v Sharp , IRLR 332 (House of Lords 1978). White v Reflecting Roadstuds Ltd, IRLR 331 (Employment Appeal Tribunal 1991). Read More