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Discrimination in the workplace
Explain and critically assess the extent to which employers are liable for acts of discrimination in the workplace.
The law recognises the right of an individual worker to be treated equally with others regardless of his or her sex, race or disability or other grounds. Where an employee suffers discrimination he or she has the right to obtain satisfactory remedy. In this regard, it is perhaps important to note that since discriminatory activities may be carried out not only by the employer but also by an employee or even the employer’s customers or clients it becomes essential to delineate the employer’s liability for acts of discrimination in the work place. In the next section, we critically explain and assess the extent of this liability.
The employer’s liability for acts of discrimination in the work place
The liability of the employer for acts of discrimination may be said to fall into two categories, namely direct liability and indirect liability. Clearly, the employer is liable for all acts of discrimination personally perpetrated by herself or himself. However, it may also be convincingly argued that an employer who fails to put in place a policy of discouraging sexual or racial discrimination or indeed discrimination on other grounds, which may be inferred if he or she lacks a procedure for dealing with complaints, may for that reason be personally liable for subjecting employees, for example, to a working environment in which sexual or racial discrimination is possible. This finding would be consistent with the European Commission’s Recommendation of 27 November 1991 on the protection of the dignity of women and men at work.
With regard to the activities of others, the SDA, s.41 and the RRA, s.32 provide that an employer is liable for the acts of employees done in the course of their employment, whether or not done with the employer’s knowledge or approval. Whether or not employees’ actions were ‘in the course of their employment’ was originally interpreted as being the same as the common law test for vicarious liability in tort. However, in Jones v Tower Boot Co Ltd (1997) the Court of Appeal held that there were important differences between the statutory formulation and the common law test so that it was not appropriate to treat them as identical. Thus taking into account the purpose of the legislation, the Court held that the words ‘in the course of employment’ should be given their normal meaning, not the technical meaning used in relation to vicarious liability in tort. This interpretation may be somewhat confusing to most common lawyers who will have been used to the usual interpretation under tort law. However, it is laudable in that it helps focus on the purpose of the statute; that is root out discrimination from the employment setting.
In Burton v De Vere Hotels (1996) the EAT held that an employer could also be liable for discrimination consisting of the Acts of third parties: not only employees, but also customers, clients and others. The action was brought against a hotel which had been booked for a club dinner. They had invited as an after-dinner speaker a comedian notorious for sexually explicit and racial jokes. Two Afro-Caribbean waitresses clearing tables at the end of dinner caught his attention and in the course of his performance he made insulting comments directed at them. The EAT held that although the hotel could not be vicariously liable for the actions of third parties, it was directly responsible for the discrimination in these circumstances because as employers, they had control of the situation in which the discrimination took place.
This case is very significant for employers in that, where any incidents of harassment are likely to occur, employers should be taking steps to identify whether there are any steps which could be taken to protect employees. It is important to recognise, however, that there might be areas where it was relatively difficult for the employer to prevent harassment occurring and it may seem harsh that the employer should be find liable. Nevertheless, employers would be well advised to ensure that managers realise that harassment by customers of their staff can lead to direct liability for the employer and so should not be ignored. It is my view that this high standard of protection is necessary to ensure employers do all they can to ensure that there is no discrimination in the work place.
Defences against liability
An employer may escape liability if they ‘took such steps as were reasonably practicable’ to prevent the employee from doing the act in question or from doing act of that description in the course of his or her employment (the SDA, s.41 and the RRA, s.32.). It is submitted that this standard should be a high one. It is not enough to show that the employer has acted reasonably. The duty is to prevent the harassment from occurring, rather than to act responsibly following the harassment. However, in order to escape liability completely, the employer needs to devote his attentions to prevention, which is, after all, better than a cure. Consequently mere superficial decorations should not be allowed to stand as defences. Two cases illustrate this point:
In Balgobin v Tower Hamlets (1987) two cleaners employed by the Council at a hostel complained of sexual harassment by a chef working in the same place. The Council relied on the fact that it had a clear equal opportunities policy promulgated to employees and that there was proper and adequate supervision of employees at work. In these circumstances the EAT held that the employer had established the defence. (See also Taylor v. Asda Stores Ltd (1994))
By contrast in Earlam v. VMB Ltd and Andrews (1995) the employerhad ‘not even reached the starting block’ according to the tribunal. The paragraph on sexual discrimination was buried in a handbook, with no direction to staff to read the paragraphs specifically. There was no induction course or training. The evidence showed that staff had little idea what constituted sexual discrimination.
There are also statutorily provided genuine occupational exceptions where discriminatory acts in the work place may be excused. (See RRA s.5, SDA, s.7) These grounds provide justificatory defence to the employer in the event of a suit. However, it is submitted that these exceptions must be construed fairly narrowly and strictly and this view is confirmed by the shortness of the excepted grounds.
Discrimination is a blight that needs to be removed from the workplace. It is, therefore, the correct for the law to adopt a tough stance against it and not leave the employer much lee way in terms of possible defences. Clearly, where the employer has done all they could, they should not be held liable. This approach ensures that all employers take discrimination seriously and that they actively implement policies aimed at combating it.
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