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Discrimination in Employment

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The employer in this scenario is likely to face litigation for discrimination. The question particularly explores issues of sex, age, race and disability discrimination, legislation for which is provided by a number of statutory sources and supplemented by European directives.

The Sex Discrimination Act 1975 and the Race Relations Act 1976 define discrimination under three headings: direct, indirect and victimisation. The Disability Discrimination Act 1995 refers only to direct discrimination and victimisation. According to the SDA and RRA, the first of these terms consists of treating one person (an employee or applicant for a job) less favourably than another, and doing so because of the persons race or sex: RRA 1976, s.1(1)(a); SDA 1975, ss.1(1)(a) and 3(1)(a). The employer's intention or motive is irrelevant and there is no defence of justification by the requirements of the job. The test for 'less favourable treatment' is objective and to be viewed from the perspective of the applicant's reasonable perception. A comparator is used to ascertain difference in treatment, of which the only non-negligible variable should be the sex or race of the employees compared: SDA s.5(3). The DDA has a similar definition at s.5(1): less favourable treatment of a disabled person for a reason related to that person's disability. As we shall see, the employer has a duty to make 'reasonable adjustments' (s.6(1)) for a disabled employee, but under s.6(6) the duty does not arise if the employer neither knows of the disability, nor could reasonably be expected to know of it.

Following recent amendments, the provisions in the SDA and RRA for indirect discrimination are now different. The SDA at s.1(2)(b) recognises indirect discrimination where a provision, criterion or practice is applied to a woman (or a man) and is:

a) To the detriment of a considerably larger proportion of women than men;
b) Unjustifiable irrespective of sex;
c) To the woman's detriment.

The Race Directive 2000/43/EC has prompted the revised definition of indirect racial discrimination. RRA s.1(1)(A) reads:

A person.discriminates against another if.he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but -

a) Which puts or would put persons of the same race [etc] as that other at a particular disadvantage when compared with other persons,
b) Which puts that other at a disadvantage, and
c) Which he cannot show to be a proportionate means of achieving a legitimate aim.

Victimisation is the less favourable treatment of an employee by reason that the person has taken action under the RRA, SDA or DDA. The test is objective and motive is again immaterial so that in the case of Nagarajan it would have been sufficient that interviewers were unconsciously influenced by a knowledge of previous complaints from an applicant.

There are five unlawful discriminatory acts which can be committed in relation to employment. They can be found in the SDA, RRA and DDA and relate to:

1) The arrangements a person makes for the purpose of determining who shall be employed.
2) The terms on which employment is offered.
3) Refusal or deliberate omission of an offer of employment because of a person's sex.
4) Access to opportunities for promotion, transfer, training, any other benefits or facilities or services.
5) Dismissal or subjection to other detriment.

In addition, it is illegal to aid or abet an unlawful act of discrimination; to make false or misleading statements regarding the lawfulness of a discriminatory act; to apply pressure on another to discriminate; to instruct another to discriminate or to publish a discriminatory advert.

Advert

Under SDA s.38(1), RRA s.29 and DDA s.16(B) it is unlawful to publish an advert which either indicates or might reasonably be understood to indicate, an intention to discriminate. The advert in question requires 'young' applicants, although it is not specific as to age. They must also be 'fit', inviting the argument that the advert discriminates against disabled applicants. The requirements that they be outgoing, extrovert, articulate and able to relate to young people are not discriminatory criteria per se.

Only the Commission for Racial Equality (irrelevant in this case) and the Equal Opportunities Commission have the power to bring proceedings in respect of a breach of the above sections. The reason for this lies in the precise wording of the statutes: the EAT in Cardiff Women's Aid v Hartup (8^th February 1994) distinguished between an 'act of discrimination' and an 'intention to discriminate'. Mrs Hartup complained that she had been discriminated against on racial grounds, contrary to RRA s.4(1)(a), which renders it 'unlawful for a person, in relation to employment by him.to discriminate against another - (a) in the arrangements he makes for the purpose of determining who should be offered that employment'. The first hurdle that the applicant surmounted was the fact that she was not even applying for the job: according to the Home Office's Guide to the Race Relations Act it is not necessary that a complainant apply for a job in order to bring proceedings under s.4(1)(a). However, she failed because she had not actually been the victim of discrimination; likewise, should Arcadia feel that the advert precludes her from eligibility for the position in question she must bring the case to the attention of the EOC for the advert's intention to discriminate and not because she has experienced discrimination herself.

Application Form

Questions presented on an application form constitute part of the arrangements for employment. In order to avoid accusation of intention to discriminate the employer must show that the same questions were put to all candidates, regardless of sex, race, age or apparent disability. However, it was decide in Saunders v Richmond-upon-Thames Council that to put questions to female applicants which are not put to men does not necessarily amount to an intention to discriminate on grounds of sex. It may be that certain questions are more relevant when asked of a woman, e.g. whether or not she intends to have children or what arrangements she intends to make if they are ill. In such cases it was found that an intention to discriminate on grounds of parenthood is more clearly indicated, although it would be advisable for an employer to have asked this question of both male and female candidates to avoid any repurcussions.

If all candidates were asked to provide a photograph then there is no apparent discrimination (although potentially there could be intention to discriminate). Similarly, all candidates were told that if successful, they would be required to wear the company uniform.

Age

In 2006, the Equality at Work Directive will be implemented in Britain and contains specific provisions for age discrimination. This will supercede the 1999 Code of Practice on Age Diversity which was largely ineffective, not least due to its purely advisory role and lack of enforcement powers. Existing case law relating to age discrimination been brought under various guises: Perera made his case one of racial discrimination; Price claimed discrimination on the ground of sex.

At the moment, Arcadia would be advised to pursue a claim of discrimination on the ground of disability, but she could conceivably argue that she was not employed due to her age and that a lower age limit was harder for her as a woman to comply with than it would have been for a man. If her five year career break was taken in order to raise children then following Price she could claim sex discrimination. However, as the advert did not specify a certain age it would be hard for her to demonstrate that being 35 automatically removed her from eligibility and thus discrimination on account of her age would be very difficult to prove. Even after 2006 she would be ill-advised to pursue a claim specifically of age discrimination for the same reason. Michael Connolly refers to the American Age Discrimination in Employment Act to illustrate the effect of similar legislation. He notes that claims under the ADEA tend to resemble wrongful discharge claims rather than claims of discrimination 'because they are not claims on behalf of a discrete and insular group in our society.' They are easily avoided by employers with general defences to unjust dismissal. In Laugesen v Anaconda Co it was acknowledged that an older person who is dismissed is likely to be replaced by someone younger, even without discrimination and while this is not directly related to the case in point it serves to show that as age is common to all, distinguishing particular acts of unfair discrimination is much harder than where immutable characteristics such as sex and race are concerned.

Arcadia could try and argue indirect discrimination if she could show a practice of employing young people was continuing at the salon and that this had an adverse affect on women. Such a practice could of course be rendered justifiable by the employers and Connolly notes that demonstrating a detriment would be problematic.

Disability

Ken refers to Arcadia's 'condition' but does not expand on which he is referring to. If it is to her epilepsy then he may be liable for disability discrimination. S.1(1) DDA 1995 defines disability as a physical or mental impairment that has a substantial and long term adverse effect on a person's ability to carry out normal day to day activities. Under s.5(1) an employer discriminates if for a reason related to that person's disability, he treats him less favourably (no comparator necessary) and that he cannot justify such treatment under s.5(3). If there are more than 15 employees then an employer has a duty under s.5(2) to make reasonable adjustments to accommodate the disabled person unless he can justify a failure to do so under s.6(4).

Case law has demonstrated that epilepsy may qualify as a 'disability' under s.1. Presumably this is because it affects probably all of the functions outlined in DDA sch 1 para 4(1) including mobility, manual dexterity and physical co-ordination. It has a more than minor or trivial effect and will have lasted 12 months or be likely to last as long. If Ken has discriminated against Arcadia on account of her epilepsy then it is up to him to show that her condition prevents her from being able to carry out the job, with or without 'reasonable adjustments'. It is hard to see in this case just what adjustments would be effective or appropriate although it is likely that GBH will not be able to bypass this duty as they probably employ over fifteen people (we know they have at least one other salon).

There is no legislation protecting people who are overweight as such but it may be possible for Arcadia to argue that her obesity fulfills the criteria in DDA s.1 although this seems unlikely unless she can prove that it is due to a medical condition rather than overeating. Her eczema clearly would not have a substantial affect on her ability to carry out normal day to day activities so would not be the subject of disability discrimination.

Dress code

Neither Colin nor Bushra are prepared to conform to company policy regarding dress code. Bushra's case overlaps with the subject of racial discrimination but Colin's situation is more straightforward. Dismissal potentially qualifies as 'less favourable treatment' but only if as a result of discrimination. A number of cases have examined whether male and female uniforms are contrary to the provisions of the SDA but generally courts have not found them to be discriminatory. The general consensus is that rules enforcing a conventional or smart appearance are lawful: the EAT in Schmidt upheld a rule requiring female employees to wear trousers because, amongst other things, the SDA prohibits discrimination against one or other of the sexes (ie less favourable treatment) and not between the sexes (different but not less favourable treatment). In Safeway the Court of Appeal held that dismissal of a male delicatessen assistant for wearing a pony tail where a female counterpart would not have been dismissed was not direct sex discrimination. Wintemute puts this down to the employer's need to cater to the prejudices of its customers and is really sex discrimination in essence.

It appears therefore that Colin has no defence to his wearing of a skirt as this would be contrary to conventional standards, probably even regardless of the increasing homosexual clientele of the salon. He is dismissable for breaking the express term of the contract.

Bushra's case is however, more complex. The case of Schmidt cannot be effectively applied here as there was no issue of race in that case. Bushra will claim unfavourable treatment on account of her ethnic origin which has caused her the disadvantage of having to work in the laundry. The discrimination in question is indirect - the requirement to wear trousers constitutes a provision, criterion or practice to which Bushra cannot comply as a direct result of her ethnic origin. It was established in the Mandla case that Sikhs are a racial group entitled to the protection of the RRA as they constitute a 'distinct community' with 'a cultural tradition of [their] own including family and social customs.' It will be easy for Bushra to establish that the proportion of people in her ethnic group who can comply with the practice (only the males) is considerably smaller than the proportion of persons not of that racial group who can comply (males and females). GBH in response need not show that the wearing of skirts by women is necessary, only justifiable without regard to Bushra's ethnicity - an objective balance must be struck between the discriminatory effect and the reasonable needs of the respondent. There does not seem to be a legitimate objective in requiring Bushra to wear a skirt: it is likely that she would meet the standard of appearance wearing simply trousers and it would not be proportional to insist otherwise.

Ken

Ken is just as likely to have been dismissed for sending explicit emails if he was heterosexual rather than homosexual. However, thanks to the Employment Equality (Sexual Orientation) Regulations 2003, protection is now afforded to individuals from discrimination on grounds of sexual orientation and covers direct and indirect discrimination as well as victimisation. Under the SDA it had only been possible to compare the treatment of a gay man with that of a gay woman which was of course unsatisfactory as demonstrated in the case of Pearce v Governing Body of Mayfield Secondary School (2003). In Ken's case, under the new legislation it would be investigated as to whether he received unfavourable treatment on grounds of his orientation to the same sex (or both sexes) rather than whether or not a gay or bi-sexual woman would have been dismissed in the same situation.

Remedies

The tribunal may award a declaration, compensation or a recommendation if it considers it 'just and equitable' to do so (RRA s.56; SDA s.65). Compensation is uncapped and is available for actual and future losses as well as injury to feelings. Whilst Ken is responsible for the majority of the potential claims, GBH will be vicariously liable for his discriminatory actions if they are deemed to be performed in the course of his employment (SDA s.41; RRA s.32). This will afford the individuals two routes to compensation in the tribunal.

Bibliography

The Sex Discrimination Act 1975.
The Race Relations Act 1976.
The Disability Discrimination Act 1995.
The Employment Equality (Sexual Orientation) Regulations 2003.
The Disability Discrimination (Meaning of Disability) Regulations (SI 1996 No 1455).
Equal Opportunities Review, No. 57, Sept/Oct 1994.
Equal Opportunities Review, No. 54, March/April 1994.
Modern Law Review, 1997, 60(3).
New Law Journal, April 30^th 1993, 143.
Allen, Robin and Crashaw, Rachel, Law and Human Resources, (Oxford University Press: 2002).
Connolly, Michael, Townshend-Smith on Discrimination Law: Text, Cases and Materials, (London: Cavendish Publishing, 2004).
Hardy, S; Upex, R; Benny, R; Labour Law (Core Text Series) (Oxford University Press: 2004).
Holland and Burnett, Employment Law, (Oxford University Press, 2004).
Painter, Richard and Puttick, Keith, Employment Rights, 3^rd ed., (London: Pluto Press, 2004).
Selwyn, N.M., Selwyn's Law of Employment, 12^th ed., (London: Butterworths Lexis Nexis, 2002).
Slade, Elizabeth, Tolley's Employment Handbook, 14^th ed., (Surrey: Tolley, 2000).

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