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Published: Fri, 02 Feb 2018
Employee Law And Relations
In seeking to advise John whether he is likely to have a claim for unlawful discrimination on the basis of the facts, this might be an example of disability discrimination. This is because when John applied for a position internally within the company that would have meant a promotion he was passed over in favour of Judy who also worked in his department but was also partially disabled. Therefore, John needs to be advised the Disability Discrimination Act (DDA) 1995 (amended by the Disability Discrimination Act (DDA) 2005) provides it is unlawful for employers to discriminate against ‘disabled people’ (amended by the Special Educational Needs & Disability Act 2001)  with ‘disability’ defined under section 1(1) as “a physical or mental impairment which has a substantial . . . effect on the person’s ability to carry out normal day-to-day activities”  with supporting medical evidence.  Considering the definition’s constituent parts under section 1(2) of the DDA 1995  whereby ‘physical impairment’ includes blindness, deafness, or a limb’s loss, whilst ‘substantial’ is a disability more than minor, but less than severe, ‘long-term adverse effect’ means it lasts over a year and ‘normal day-to-day activity’ means the disability impacts upon a given person’s – (i) mobility; (ii) manual dexterity; (iii) physical co-ordination; (iv) continence; (v) ability to lift, carry, or otherwise move everyday objects; (vi) speech, hearing or eyesight; (vii) memory or ability to concentrate, learn or understand; or (viii) perceive risk of physical harm. 
However, in this case it is the person who is not diabled (John) for the purpose of the DDA 1995 who is seeking to claim his employer is guilty of unlawful discrimination. This would seem to mean John can bring an action in the Employment Tribunal whilst it is for the employer to show their actions are justifiable  under section 5(3) of the DDA 1995  to then be judged objectively by the court evaluating the case.  The reason for this is that it could be argued this is an example of ‘affirmative action’ with a view to achieving a balance between equality and non-discrimination. This is because, for example, in the case of Eckhard Kalanke v. Freie Hansestadt Bremen  the European Court of Justice (ECJ) found that any laws that would provide for the recognition of automatic preference to women who are as qualified as men serves to violate EU law. This is because, although the Equal Treatment Directive 76/207/EEC (since amended by the Equal Treatment Amendment Directive 2002/73/EC and the Equal Treatment Directive (Recast) 2006/54/EC) permitted for measures utilisation in employment, the use of any rules regarding who may and may not be employed are not allowed “beyond promoting equal opportunities”. However, the ECJ also recognised in the case of Marschall v. Land Nordrhein-Westfalen  ‘affirmative action’ was allowable to provide for women’s employment where they are under-represented so long as certain conditions are met. In addition, the European Commission Framework Strategy of 2005 on non-discrimination and equal opportunities also looked to bring about the advancement of the European Commission’s Green Paper on ‘Equality & non-discrimination for all in an enlarged EU’ with a view to enhancing the rights of employees regardless of their apparent differences. 
John may look to advise Mary on the basis of the facts that this may amount to an instance of sex discrimination because the firm that they are working for will not offer her cheap mortgage facilities in view of the fact that she is single but has a steady boyfriend. Therefore, there is a need to advise Mary that equality in employment is generally considered to be fundamental to ‘decent work’ according to the International Labour Organisation (ILO) with a view (1999) to promoting “opportunities for women and men to obtain decent and productive work” in the European Union (EU).  However, when advising Mary, the principle of ‘equality’ is considerably more distinct than simply being about matters of gender because it “may denote a moral belief, a rationalist perception, an a priori principle, a right, a means to an end or an end in itself”.  It is also necessary to advise Mary regarding the fact that equality has focussed upon disseminating issues of gender in the EU, whilst discriminatory law is looked upon as something quite different under Article 14 of the European Convention for the Protection of Human Rights & Fundamental Freedoms (ECHR) 1950 (domestically implemented by the Human Rights Act 1950) with a distinction relating to equality of both a formal and substantive nature.  Nevertheless, formal equality has been most clearly articulated  because everyone that is faced with a similar situation within society should be treated equally as with, for example, equal pay under the Equal Pay Act 1970 as amended by the Equal Pay (Amendment) Regulations 1983. 
John needs to advise Mary that the principle of equality is a flexible one not merely applicable to the common area of discrimination under the Sex Discrimination Act 1975, but also any apparently irrational difference that is recognised between two or more individual employees in carrying out their work by an employer.  By way of illustration, the ECJ in the case of Caballero v. Fogasa  it was held there had been a breach of the principle of equality in the employment relationship where employees were unfairly dismissed and their employer subsequently became insolvent were not entitled to a benefit otherwise available to unfairly dismissed workers. However, to better understand employment equality, this concept has two basic dimensions: ‘consistency’ and ‘substantive’ or ‘material’ equality.  The first is found in all anti-discrimination laws and in Article 1(1)(a) of ILO Convention No. 111 – Discrimination in Respect of Employment & Occupation 1960 that states “‘discrimination’ includes … any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment”.
That this has proved the case Mary needs to be advised this is the embodiment of procedural justice since this principle is not violated if an employer treats women and men equally badly so, by way of illustration, in ECJ cases under Article 141 of the EC Treaty (amended Treaty of Rome 1957) that ensures equal pay for women and men for work of equal value.  By way of a further example, in the case of Grant v. South-West Trains Ltd  a railway company granted travel concessions to its employees’ spouses or unmarried partners of the opposite sex. However, whilst a female employee with a same-sex partner claimed this was unlawful sex discrimination, the ECJ made a comparison with how the same-sex partner of a male employee would have been treated and concluded there was no discrimination. Therefore, it is arguable on analogy in advising Mary on her position that if a comparison is made with a man in the same position who has a steady girlfriend and the firm also would not have have granted the man the use of the mortgage facility then there would not be an incident of discrimination in the circumstances.
Mary also needs to be advised in the EU there is a comprehensive anti-discrimination directive within the remit of Article 13 of the EC Treaty was developed by the Council of Ministers  , along with the directive on racial equality  , whilst the European Union Charter of Fundamental Rights 2000 also has a chapter devoted to equality. Moreover, Mary also needs to be advised that, in 2000, the Council of Europe opened a new Protocol (No. 12) to the ECHR 1950 because it did not provide protection in discrimination in employment related back to the concept of equality and that substantive equality moves beyond mere ‘sameness’ of treatment.  Instead, the concept is actually focussed upon addressing the structural causes and symptoms of inequality  and suggests it is not sufficient to simply enact a prohibition, but that positive action may also be needed to redress past and present disadvantages in this area. By way of illustration, the ECJ in Lommers v. Minister van Landbouw, Natuurbeheer en Visserij  looked to guarantee substantive equality by upholding an employer’s subsidised childcare scheme primarily open only to female employees was inappropriate. However, Mary needs to be advised divergences arise. This is because the ultimate objective of substantive equality is focussed upon endorsing equal opportunities or merely securing equal results  – although the latter target will demand greater intervention and more aggressive positive action  so the principles of equality are more effectively promoted for all in instances such as this involving the use of a benefit like cheaper mortgage facilities..
Finally, there is a need to advise Mike on what action might be available to him, why it might be available and when this may be the case. This is because this might be an example of religious discrimination in view of the fact that he had been growing his hair out begun wearing his hair in a pony-tail and changed his religion leading up to his dismissal. On this basis, it is for Mike to be advised under the Employment Equality (Religion or Belief) Regulations 2003 it is illegal to discriminate against people in employment or vocational training on the basis of their religion or beliefs.  The Equality Act 2006 then served to broaden the provisions of the Employment Equality (Religion or Belief) Regulations 2003 to provide for goods, facilities and services, education, the use and disposal of premises, and the exercise of public functions. This understanding of discrimination on grounds of religion is supported by Article 9 of the ECHR 1950 to be read in keeping with the Race Relations Act 1976.  Therefore, everyone has the right to freedom of thought, conscience and religion that can only be restricted “in accordance with the law” that is “necessary for a democratic society” under Article 9(2) of the ECHR 1950 – that must also be read in keeping with the recognition of the right to privacy and regarding the matter of discrimination under Articles 8 and 14 of the ECHR 1950 respectively. 
When advising Mike under the Employment Equality (Religion or Belief) Regulations 2003 it is to be appreciated that any employer who demonstrates less favourable treatment towards someone on the basis of their religious beliefs (or how those beliefs are perceived) is guilty of unlawful direct discrimination.  In addition, the Employment Equality (Religion or Belief) Regulations 2003 also provides that an employee is guilty of indirect discrimination if they apply a “provision, criterion or practice” that disadvantages people or a religion or belief without a good reason under Article 9(2) of the ECHR 1950.  This effectively means that discriminating against Mike for growing out his hair and putting it into a ponytail as a reflection of his changed religion could be considered to be direct discrimination because it places Mike in a less favourable position since no one individual has the right to dictate to another person regarding what they wish to believe.  At the same time, however, there is a need to appreciate that Mike’s employers have an overriding duty of care so as to look to provide a safe working environment under the Health & Safety at Work Act 1974 because of the relationship of ‘mutual trust and confidence’ between the employer and employees like Mike with a view to in carrying out their duties in their work. 
However, to conclude, if Mike’s employers can show a genuine belief the wearing of long hair in a ponytail goes against the overriding duty to provide a safe and secure working environment then would have then be compelled to remove it otherwise Mike would have been liable to be dimissed in the way that he was from the firm. But, since Mike is employed as a paralegal, it is arguable that no such duty not to wear his long hair in a ponytail would exist. As a result, on the facts, it would seem that Mike’s employers have acted in a discriminatory way towards him by treating him in what is considered to be a ‘less favourable’ manner that is considered to be contrary the Employment Equality (Religion or Belief) Regulations 2003 and the Equality Act 2006 along with Article 9 of the ECHR 1950.  It is also to be appreciated, however, that the UK Directgov website also provides advice regarding discrimination based on religious beliefs because “There are exemptions from the regulations for ‘genuine occupational requirements’ (GOR) in very limited circumstances where it is necessary to be from a particular religion to do a certain job. Unlike other anti-discrimination legislation, there is also an exemption for ’employers with an ethos based on a religion or belief'”.  This effectively means that, by way of example, a religion can actually be cited as a job requirement even if it is not a decisive requirement for who gets a particular job so that this means that an employer seeking a Catholic Priest is able to look to appoint someone from the Catholic religion in view of the fact that it is a GOR. However, the reality is that there is unlikely to have been any religious requirements in relation to Mike’s employment by the firm as a paralegal with this firm. 
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