Discrimination for the Purposes of Employment Law - Essay Example

The factual scenario raises various issues in employment law pertaining to discrimination and I shall address each claimant’s legal position in turn. 1. Discrimination: General Principles Firstly discrimination for the purposes of employment law claims can be direct or indirect “Direct discrimination occurs when a person is treated less favourably on grounds of sex or race1. In James v Eastleigh Borough Council2 the House of Lords considered the meaning of the words “on the ground of her sex” in respect of direct discrimination. The House of Lords asserted that the relevant test of direct discrimination was objective and if the employer action resulted in less favourable treatment of one sex, or the less favourable treatment would not have occurred but for the complainant’s sex, it would constitute direct discrimination3. Moreover, there had to be a criterion, which was discriminatory. With regard to indirect discrimination, this is discrimination against a particular group sexual or racial, which prejudices the complainant4. Moreover, for indirect discrimination claims in both sex and race discrimination, there are four conditions which must be satisfied: 1) The employer imposes a condition or requirement which applies equally to both sexes and races; 2) The proportion of the complainant’s sexual or racial group who can comply with the condition or requirement is considerably smaller than the proportion of other groups who can comply; 3) The condition or requirement is not justifiable irrespective of sex or race; and 4) It is to the complainant’s detriment that they cannot comply with the condition or requirement5. 2. Anthony Anthony’s legal position raises issues regarding disability discrimination and in particular, the possible effect of the Disability Discrimination Act 1995 (DDA). However, in order to rely on the DDA provisions for bringing a discrimination claim, Anthony would have to demonstrate a “disability” for the purposes of the DDA. Section 1 of the DDA defines this as “a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.” The case of Goodwin v The Patent Office6 provided detailed guidance section 1 of the DDA. The first consideration is whether “the application has an impairment which is either mental or physical7”. Anthony has been diagnosed with cancer, which will constitute physical impairment for the purpose of the DDA definition. Secondly, only medically recognised illnesses will fall within the DDA and cancer satisfies the criteria under the World Health Organisation’s International Classification of Diseases8. Accordingly, Anthony’s condition will come within the definition of a disability under the DDA and the next consideration is whether the impairment will affected his ability to carry out normal day to day activities. The case of Greenwood v British Airways9 determined that this necessarily involved a factual investigation10”. With regard to the current scenario, Anthony’s job as analyst is impacted as he will need a week off every month for treatment. Otherwise, he can still undertake his duties. However, on grounds of the impairment to his ability to carry out the job full time, coupled with the poor economic climate, he is being made redundant. The next issue is whether the adverse effect is substantial11. The Goodwin case highlighted that the definition of substantial means “more than minor or trivial12” and is essentially a question of fact in each case. Relevant considerations include how long it takes to complete tasks and the manner in which tasks are undertaken.13 With regard to Anthony, he appears to have a senior position it is evident that her work has significantly suffered, which further supports a claim that the adverse effect of his cancer is substantial. The final consideration is whether the adverse effect is long-term. Schedule 1(2)(1) of the DDA states that an effect is long term if “(a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the person affected”. Anthony has been diagnosed with cancer and as such, this will likely satisfy the long-term requirement. As such, section 3A(1) of the DDA states that an employer discriminates against an employee if “for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified”. The DDA in fact goes further and states under section 3A (4) that treatment cannot be justified if it amounts to direct discrimination. With regard to Anthony’s position, he has disclosed his diagnosis and treatment requirements to his employers, therefore Brown & Harman will not be able to rely on the section 4A defence. In light of Anthony’s disability, Section 6 of the DDA imposes a positive duty on B & H to make reasonable adjustments to facilitate Anthony’s continued employment and access to performance related bonuses. The House of Lords in the case of Archibald v Fife Council14 described this as a “duty to positively discriminate15”. Failure to do so will point towards unfair dismissal16. Moreover, in the Archibald case it was held that transferring an employee from a post they could no longer do to one they could would constitute a reasonable adjustment under the DDA. Section 18B of the DDA provides further examples of reasonable adjustments. Furthermore, the reasoning of the decision in Mid Staffs General Hospitals NHS Trusts v Cambridge 17highlights the fact that as Brown & Harman is aware of Anthony’s disability, they will have a positive duty to obtain a proper assessment of his disability, how it affects his ability to work and the changes that were required to be implemented throughout the workplace to minimise the effects18. Section 3A(3) of the DDA asserts that discriminatory treatment is only justified “if, but only if, the reason for it is both material to the circumstances of the particular case and substantial”. However the case of Collins v Theatre Board 19emphasises that an employer cannot use the same factors to justify failure to make reasonable adjustments and to determine whether any adjustments made are reasonable20. Factors that may constitute justification include the extent to which it is practicable for the Brown & Harman to take the steps, the costs which would be incurred, the extent of resources and the availability of taking the necessary steps21. Accordingly, if Brown and Harman have made the decision to dismiss Anthony without accounting for or assessing his disability and the possibility of adjustments to accommodate his condition including the workability of the treatment requirements, will further strengthen Anthony’s position in a claim for disability discrimination against them. 2. Diana The refusal to offer Diana the job is arguably grounds to bring a claim for sex discrimination under the Sex Discrimination Act 1975 (SDA), which prohibits the less favourable treatment on grounds of sex22 . Section 1 of the SDA covers discrimination in recruitment therefore Diana will have locus standi to bring a claim under the SDA on grounds that the discrimination occurred during the recruitment process. It is also important to highlight that the Sex Discrimination (Indirect Discrimination and burden of proof) Regulations 2001 means that burden of proof is on an employer to disprove in prima facie cases of discrimination. Accordingly, if Diana can establish sufficient grounds for a claim, there will be presumption of discrimination. The refusal to offer Diana is expressly on grounds that there were similar candidates and that she was unsuccessful in the recruitment process, however Diana appears to believe that it is due to her disclosure of pregnancy and the fact that she will require 6 months’ maternity leave. The majority of cases addressing sex discrimination and child care issues have involved existing employees, which I shall consider by analogy. Firstly, in case of British Telecommunications v Roberts and Longstaffe23, it was held that where an employer turns down such a request for flexible working based on child care arrangements, there is still a possibility of indirect discrimination. Additionally, the SDA prohibits discrimination no grounds of pregnancy or maternity leave in employment or recruitment. Accordingly, if Diana can establish that “but for” her pregnancy and requirements for maternity leave, she would not have suffered less favourable treatment, she will have strong grounds for a claim for sex discrimination24. Additionally, under the SDA, Diana will have the burden of proving that she suffered a detriment, which in this case means the loss of job opportunity and potential income. In the case of Coker v Lord Chancellor25, it as held that an applicant had to demonstrate that they would have been qualified to be considered for the appointment but for the objectionable requirement. Moreover, in the case of Ministry of Defence v Jeremiah26 it was held that the applicant must have suffered a disadvantage. If we apply this by analogy to the current scenario, if Diana is likely to have been offered the job but for the Company’s concerns regarding childcare, she will have grounds for demonstrating detriment and a disadvantage. Section 1(1) (b) of the SDA 1975 provides the employer the right to demonstrate justification for the decision or requirement. The test is establishing a genuine material difference factor under Equal Pay Act 1970, section 1(3). In the case of Hampson v Department of Education and Science27, it was held that the meaning of justifiable within section 1(1) (b) required an objective balance to be struck between the discriminatory effect of the requirement or condition and the reasonable needs of the person who applies it28. The test of justifiability in related fields should be consistent and Lord Balcome asserted that “in my judgment “justifiable” requires an objective balance between the discriminatory effect of the condition and the reasonable needs of the party who applies the condition”29. In the case of London Underground Limited v Edwards30 the EAT held that employment tribunal was allowed to take into account that it was common knowledge that a proportionately larger number of women have childcare responsibilities than men, and therefore prejudice based on this would constitute indirect discrimination as employers should have arrangements in place to address this. This further strengthens Diana’s potential claim for discrimination. Section 7 of the SDA however refers to sexual genuine occupational qualifications, which permit employers to make certain exceptions to SDA requirements. However the company would have to prove that the exception was a genuine occupational reason. and the facts of the current scenario do not indicate that the company will have a genuine occupational qualification defence under the SDA. 3. Fareeda The factual scenario indicates that Fareeda may have a potential claim against the sports club under the Employment Equality (Religion or Belief) Regulations 2003. The 2003 Regulations came into force and prohibit discrimination and harassment in employment on grounds of religion or belief. As such, an employee has the right not to be treated less favourable that other employees on the basis of her religion or belief, or her perceived religion or belief31. Moreover, the Sports club is required to protect Fareeda from discrimination on grounds of religious beliefs. Additionally, in the case of Ojutiku v Manpowers Services Commission32, the correct test is one which requires an objective balance to be struck between the discriminatory effect of the employer’s requirement or condition and the reasonable needs of the person who applies it. If and only, if its effect can be justifiable within section 1(1) of the Race Relations Act 1976 and the fact that the measure is inherently discriminatory does not amount to justification. In the Ojutiku case it was held that it was not necessary to demonstrate the requirement that good for the business but rather “if a person produces reasons for doing something which would be acceptable to right thinking people as sound and tolerable reasons for so doing then he has justified his conduct33”. The onus will be on Fareeda to make her claim under the 2003 Regulations. 4. Shirley With regard to the University’s refusal of Shirley’s request to work from home to care for her elderly father, the issue in contention is the right to flexible working conditions under section 47 of the Employment Act 2002. Additionally, the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 provide a statutory right to request flexible working arrangements provided the eligibility requirements of the Regulations are complied with. With regard to the current scenario, Shirley’s father lives with her and requires full time care, which qualifies as an eligible reason for making a flexible working request under the Regulations34. Additionally, the nature of Shirley’s request to work at home is a permissible request under the flexibility requirements. However, Shirley has been working for the University for Six months, which is a total of 24 weeks and Regulation 3 of the requirement clearly stipulates that an employee is entitled to make a flexible working request if they have been working for a period of “not less than 26 weeks”. Therefore, the University is legally entitled to refuse the request. However, if Shirley makes the request in another two weeks’ time when she satisfies the eligibility requirements, the University will have an obligation to comply with the procedural requirements under the Regulations regarding the request. BIBLIOGRAPHY Gwyneth Pitt (2007). Employment Law. 6th Edition Sweet & Maxwell. Honeyball & Bowers (2006). Textbook on Labour Law. 9th Edition Oxford University Press. Painter and Holmes., (2006). Cases and Materials on Employment Law. 6th Edition Oxford University Press. Selwyn’s Law of Employment (2006). 14th Edition Oxford University Publishing. ACAS, Rights at work, Discipline, Grievance and Dismissals available at www.acas.org.uk World Health Organisation: www.who.int Legislation Sex Discrimination Act 1975 Race Relations Act 1976 Disability Discrimination Act 1995 Employment Rights Act 1996 Employment Equality (Religion or Belief) Regulations 2003 Sex Discrimination (Indirect Discrimination and burden of proof) Regulations 2001 Employment Act 2002. Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 Legislation available at www.opsi.gov.uk Read More