Anti Discriminatory Act of the UK - Essay Example

? European Union Law No: European Union Law Question No Introduction The United Kingdom is very well protected by the number of anti discriminatory measures in terms of origin, nationality, sex, disability and religious beliefs. The idea behind the anti discriminatory laws to provide equal and just treatment to every one residing in the UK without taking into consideration their cultural, social and economical background, physical appearance or religious beliefs whatsoever he or she has to perform. Anti Discriminatory Act of UK As far as the work place discrimination is concerned, the 1976 Race Relations Act made it illegal for the employers to discriminate employees on racial grounds during the course of employment. The accountability against discrimination starts from submission of employment resume by the intending employee to the employer until severance of his or her job. It is immaterial whether the discrimination of an employer was intentional or unintentional. What matters is the attitude of the employer. Is it discriminatory or not. Has he or she treated you in an impartial and fair manner or not. If it treats fairly without any discrimination, he or she will not be taken to task by the government monitoring agencies otherwise he or she should be held responsible for his or her misdeeds to according to law1. If an organization provides equal opportunity to their employees as per Human Resource Policy to put in their best efforts for dual benefits of one self and the organization to grow up to the desired level, attributes to the best Human Resource Policy. The Human Resource Policy should be accessible to all employees. The employees should be well versed with the approved HR policy in order to know their rights and obligations. According to anti discriminatory law of UK, subsequent victimization complaint against the employer is termed as discrimination2. Maternity Leave for Pregnant Women As per UK law in vogue, all female employees have the right to avail 26 weeks ordinary maternity leave regardless of her tenure of service with the employer. She is also entitled additional maternity leave, which will start at the lapse of ordinarily maternity leave which will last for another 26 weeks. This period if includes goes to 52 weeks in a year. It is up to the employee to avail how much leave she will be having in future but it should not be less than 2 weeks3. The minimum qualifications for having statutory maternity leave pay by a pregnant woman are as under: a. Be an employee. b. Stopped work on account of pregnancy. c. Weekly income of the employees should not be less than the existing rate of National Insurance Contribution. Pregnant woman will be entitled for Statutory Maternity Pay (SMP) for a period of 39 weeks, which will start from the lapse of ordinary maternity leave. The either side may give notice for maternity leave to avail provided the pregnant employee provide medical certificate which indicates date of expected newly born baby. Under the mentioned scenario, the employee will be entitled two different rates to be paid during Ordinary Maternity Leave4. During the period of maternity leave, pregnant women will be offered two different slabs of payment under Statutory Maternity Pay. In addition to maternity leave, pregnant woman is also entitled normal perks that she receives along with other fringe benefits as usual for the employees. Apart from cited facilities if she got health care insurance, she will be benefited from that policy5. In case pregnant woman would like to resume her duties earlier than her sanctioned leave, she may do so provided she serves 8 weeks notice to the employer. Further, employees may seek parental leave for dependent or to use this right to have soft hours of working to meet the family commitment. In case pregnant woman decides not to go back to work at the end of maternity leave even then she will receive the full benefits of paid maternity leave provided she give notice to the employer as per her contractual obligations6. Remedy available for the Complainant Employee The initial option available to an employee that he or she should lodge formal complaint with the authority as mentioned in the HR Policy. If the concerned authority shows no intention to resolve the issue, the complainant has the right to complain Employment Tribunal within a period of three months from its rejection. However, the mandatory period can be stretched up to six months by the competent authority if deems fit and appropriate. The competent Tribunal has the discretion to compensate the victim if found discriminatory attitude of the employer7. The award includes compensation against putting in an employee in emotional distress by refusing his or her request on nationality or racial grounds as the case may be and the sufferings of potential losses at the hands of the employer. The award of compensation amount to the aggrieved party is the sole discretion of the competent court of law. The court usually award compensation taking into account the actual losses suffered by the employee. However, in the past on racial discrimination, the employer had to pay GBP 11000/-. This has waived by the Race Relations (Remedies) Act 1994. The aims and objectives to compensate an individual who victimized at the hands of their employer by the court of competent jurisdiction is nothing but to regain his or her financial losses8. Cases under discussion The case under discussion is the case of Angela who despite having British nationality cannot claim paid maternity leave for a period of six months as per UK law of 1990. The UK law as mentioned above is contrary to the European Community law signed by the member states, which allows pregnant woman of member states six months mandatory paid maternity leave. Her employer was right to turn down her request for a period of six months since the cited UK law does not permit six months paid maternity leave. Therefore, the employer has no option but to sanction three months paid maternity leave according to law. Since the refusal of six months paid maternity leave is in contravention of EU Convention therefore, at the initial level the Angela may approach to the EU commission to invite their attention to the breach of EU rules which allows a pregnant woman to have paid maternity leave for six months rather than three months as required under the law of EU. The commission at its best tries to resolve the issue by inviting the attention of the concerned member state to address breaching of community law under Article 258 TFEU. If the member state does not resolve the issue within a time line of eight weeks, the commission will bring it to the notice of ECJ. If ECJ finds member state at fault, the court under Article 258 TFEU impressed upon the member state to comply with the judgment of the court and take necessary measures accordingly. In the mentioned issue, the UK legislators in compliance with the court orders shall amend the discriminatory law of 1990 according to which a pregnant woman is entitled for three months paid maternity leave rather than six months paid maternity leave to align it with the rules and regulations of EU Community law. In the matter of Juliette who is an Italian national and passing her pregnancy period, requested her employer for paid maternity leave whose request was not entertained because she is not a British national and the mentioned facility meant for UK nationals only. The refusal, of course is against the European Community law, which provides free movement of workers between the member states. The member states are against the discriminatory laws based on nationality discrimination between the workforces of the member states. No member states on the basis of nationality can mistreat the employee of other member state. As per EU community law, Juliette should be given just and fair treatment as others are treated in their home country. Therefore, under the UK Law, she is entitled for three months paid maternity leave. Whereas as per the EU Community law she may have six months maternity leave. In order to seek remedy from competent jurisdiction, Juliette can challenge the discriminatory attitude of the employer through appropriate forum in the mentioned case. However, she has to take steps as suggested in the case of Angela wherein the laws of the land were helpless to provide relief. The action was repugnant to Article 258 TFEU of EU Community Law. Hence, provide sufficient ground for cause of action against the member state at fault. References Busby Nicole, A Right to Care?: Unpaid Care Work in European Employment Law (OUP 2011) Claims, Sexual, Racial, Disabled Anti-Discrimination Laws (Anti-discrimination Laws) accessed 17 May 2012 Compact Law, Statutory Maternity Leave & Maternity Pay (Employment Law 2012) accessed 17 May 2012 Question No. 2 Anti Discriminatory Laws of European Union Since its inception, the European Union (EU) termed discrimination as one of its enemy number one and its mission to fight against it. Discrimination of all sorts whether direct or indirect is treated as crime under the European Union Community law. The Community laws and the local laws allow an individual to taste the fruit of life in a befitting manner. Therefore, they feel that any law, which hampers the human liberty and dignity, should be eliminated for good. They do not like discrimination amongst the human beings or parting them on the grounds of their ethnicity, religion, age, sex and disability. From the starts of 1990, the EU is all out to cub this menace from the member States. The role of civil society in this respect should not be under estimated. The civil society without an iota of doubt played the role of intermediary to bridge the gap between the citizen and the institutions of EU. It is worth mentioning that Article 19 of the Treaty of Lisbon provides legal protection to fight against all sorts of discrimination. Commission The member states are very well aware of the functions of the commission, a watchdog of the Treaties duly signed by the member states. The legal protection empowers the EU institution to effectively tackle the complaints received from member states. Further, the commission monitors that the member states are complied with the rules and regulations of EU Community laws in letter and in spirit. As soon as the commission felt that the so and so Article is not complied by the member states, immediately intervene in the matter. Initially it tries to sort out the problem through informal dialogue with the member states who is not complying with the rules and regulations of the EU or breaching one or more it’s Articles. The commission serve letter to the member states to know their viewpoint on the issue. The letter issued under Article 258 TFEU asks for the cogent reason of breaching the community laws. If response is not received within the period of eight weeks, the commission may refer the matter to European Court of Justice. If the said court of the view that the member state failed to meet its obligations under the treaty, the state is responsible to take necessary measures to comply with the judgment of the competent court in letter and in spirit to resolve the identified issues9. Complaints to European Court of Justice Lodgment of direct complaints to the European Court of Justice is possible. However, the Court of Justice via circuitous routes entertains all these complaints. There are defined limitations with regard to who can lodge it directly or indirectly and who cannot. The complainant should be specific in terms of its complaint concerning subject matter10. In terms of Article 259 TFEU, any member state can bring the complaint directly to the ECJ against another member State. Since inception of mentioned court, such cases are seldom lodged. The commission after analyzing the fact that the member state has failed to meet its obligation under the Treaty may refer the case to the competent court of Justice. However, the case pertains to the employment and industrial disputes do not normally entertain by the ECJ. However, in case of discrimination by the member state, an employee can go to the court of ECJ through a set procedure known as preliminary reference under the umbrella of Article 267 TFEU11. However, Article 263 TFEU permits complaints to the ECJ, which relates to the judicial review of the concerned EU institutions. Mentioned article has the discretion to sort out complaints with regard to privileged and non-privileged complaints. The Treaty empowers member states to challenge the acts of the EU relating to employment and industrial relations. It is very difficult for the individual employee, employer and the Collective Bargaining Agents to complain to the ECJ on the question of legality of acts of the concerned institutions12. Remedial measures available under EU community laws at a glance Any member state feels that she did not fulfill the obligations of the European Union or did not comply with the instructions or directives of equal treatment may find remedy in legal or administrative procedures of EU community laws. Apart from member states, associations and other interested parties may opt for judicial proceedings on behalf of the complainant13. The burden of proof lies on the shoulder of accused, who must prove that the principle of equal treatment has not been infringed. The complainant must be protected against any adverse treatment or adverse consequence as a reaction to the proceedings14. Case under Discussion Take the example of Roberto who is a qualified surveyor intends to start work in the UK, find difficulties to start work since the Royal Society of Chartered Surveyors allow him to work in the UK with certain restrictions. He is of the view that the imposed restriction may hamper his work and to keep away the clients. The cited society of the view that the restricted conditions drives from the regulations that relates to EU cross border professional qualification and practices. The Society in question without mincing a word informs Roberto that in their opinion the restrictions are unjustifiable and not aligned to the laws of EU Community Laws. Roberto keeping in mind the unlawful and unjustified action of the cited society requested the society to form the panel of expert arbitrators to resolve the issue. The constituted panel also endorsed that the regulation which put restrictions for the cross border workers are not according to the law but they are not in a position to make a ruling in this regard. The ultimate choice available for Roberto to refer this matter to the Commission of EU for necessary action / decision. In case, the Commission do not nullify the action of the Royal Society of Chartered Surveyors or give its verdict according to the rules and regulations he may has the option for a judicial review of the decision within the time limit allowable under Article 263 TFEU. In that situation, they may appeal for a judicial review in the presence of ample evidence to challenge the legality of the decision of the commission. Roberto may take refuge in EU Community Laws by invoking the jurisdiction of ECJ to streamline the Laws of UK that puts hurdle in the smooth working of cross border workers. Since the restrictions imposed by the Royal Society of Chartered Surveyors are based on nationality discrimination, therefore, it can be challengeable in the ECJ. The decision of the ECJ is binding on every member state. Procedure of lodgment of complaint in the commission of EU is the same as identified in the cases of Angela and Julliette. References Eurofound, European Commission (Legal Notices 5 May 2011) accessed 17 May 2012 Eurofound, Complaints to the European Court of Justice (Legal Notices 21 September 2011) accessed 17 May 2012 Europa, Equal treatment irrespective of racial or ethnic origin (Legal Notice 5 October 2011) accessed 17 May 2012 Read More