This is a written report of the changes from old law to the introduction of the Equality Act 2010 in terms of how discrimination is treated within the workplace. Before this act, the main statutory providing legal aid did not cover certain issues leaving a grey area in the law. But since the Equality Act 2010 was put into practice, legal protection is now provided to stop discrimination and states how employers must abide by the new rules, regarding direct and indirect discrimination, discrimination by association and perception.
The Law is keen to protect employees in the workplace against discrimination of any kind, discrimination involves treating someone less favourably than others because of characteristics which have nothing to do with the matter in hand.
This reports discusses the Acts of Parliament which make it an offence to discriminate against an individual in the workplace where the treatment has no relevance to the job.
Sex Discrimination Act 1975 (referred to as SDA 1975) is the act that covered discrimination on grounds of sex. It established legally recognised regulations regarding direct and indirect discrimination of an individual’s gender.
Section 1(a) SDA 1975
Defines direct discrimination against a female. It states that if an individual treats a woman less favourably than he would a man, they are discriminating directly against the female and through the SDA 1975, legal protection would be available. Such as in Coleman v Skyrail Oceanic Ltd 1981 where a female booking clerk married a man employed to a rival agency and was dismissed her employers though she would disclose trade secrets.
Section 1(1b) SDA 1975
When the discrimination is indirect against a woman law is applied by any requirements that indirectly affects women substantially more than men.
Section 6 SDA 1975
Regulates sexual discrimination within employment, what is considered sexual discrimination when applying for a work position and within employment.
Section 6 (1) SDA 1975
Established what would be considered sexual discrimination during the application process. This includes any requirements made to determine who should receive the position and any terms which may be harmful to a woman.
Section 6 (2) SDA 1975
Discrimination against a female employee, all female employees cannot be discriminated against in opportunities within the workplace such as additional training. Dismissal may also be a form of discrimination.
Section 7 (2) SDA 1975
describes any situations where it is a occupational need to be a man.
Section 7 (2a) SDA 1975
If a man is an essential part of the job then it is not sexual discrimination to specifically employ a man.
An example is in the case of decency, such as employing a lady in the gentleman’s toilet.
Section 7 (2g) SDA 1975
If the position carry’s certain duties outside of the United Kingdom and a woman would not purposively suit that role, an employer may ask for a man.
Disability Act 1995 (refer to as DA 1995) regulated discrimination against disability.
Section 1 DA 1995
The definition of disability is “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.”
Section 5 (1a) DA 1995
Defines discrimination within the workplace in terms of disability, when an individual for some reason treats him less favourably than other individuals who others who are not disabled. Including disadvantages to any opportunities in the workplace, due to the individual’s disability instead of merit
For example, it would be justifiable to reject a blind person from taking the position as a lifeguard, but it would not be justifiable to refuse employment to a wheelchair user if the job is deskbound.
Section 5 (2) DA 1995
Any failure to make the adjustments documented in section 6, will lead to the individual being able to claim for discrimination against his employers.
Section 6 DA 1995
Any adjustments the employer must make to not put the disabled employee at any disadvantage to others.
Section 6 (3) DDA 1995
An employer must make changes to premises, altering hours of work or allowing time to be given in working hours for personal treatment. However a small company may not be able to afford such financial changes and will be covered by Section 6 (1) DDA 1995. The case of Kenny v Hampshire Constabulary 1999 held that making adjustments did not include to accompany staff to the toilet.
Section 6 (4) DA 1995
To ensure Section 6 (1) DDA 1995 is abided by. The law will consider whether the changes would have a sufficient effect on the employers financially and could they afford any form of required support.
The Sex Discrimination Act 1975 regulated discrimination on the grounds of was after it was revised due to the release of the Sex Discrimination (Gender Reassignment) Regulations 1999. Due to the release of the regulations, Section 2A SDA 1975 was introduced.
Section 2A (1) SDA 1975
To treat someone less favourably due to undergoing a gender reassignment procedure is unlawful. An individual can claim if he receives treatment which restricts him in the workplace for opportunities such as promotion or is subjected to harassment.
Section 2A (3) SDA 1975
Disabled employees are legally protected by Section 2A (3a) SDA 1975 for any time off work due to there disability and is treated less favourably than an absence due another valid reason.
Section 7A SDA 1975
Exceptions in which gender reassignment can be a proper reason for deciding an individuals employability.
Section 7A (1) SDA 1975
A particular gender is a genuine occupational qualification then an individual may be refused on the grounds of their gender.
Section 7A (4) SDA 1975 (introduced by the Gender Recognition Act 2004)
If an individual has acquired a particular gender that gender is genuine when taking into consideration the application.
The old law which regulated discrimination on the grounds of race was the Race Relations Act 1976 (referred to as the RRA 1976)
Section 1 RRA 1976
Defines what is meant by racial discrimination
Section 1 (a) RRA 1976
It is discrimination to treat an individual less favourable due to their racial background. Such as the case of Johnson v Timber Tailors 1978 in which a black Jamaican man applied for a job and was told the position had been filled, however adverts continued to appeared in the paper. It was held to be direct discrimination on racial grounds.
Section 1 (b) RRA 1976
Provisions put into the workplace which affects a certain racial group, if a provision arises that a higher proportion of a certain group cannot take part compared to another group, it will be considered discrimination and legal action will be available to the individual(s) against the employer as it is not fair.
Section 3A RRA 1976
Regulations on racial harassment state that if anyone is discrimination is defined as engaging in any unwanted conduct due to an individual’s race and this can include creating an “intimidating hostile, degrading, humiliating or offensive environment for him.”
Section 5 RRA 1976
Exceptions where race can be a factor in terms of employment; it states that race can be a genuine necessity in certain situations.
Section 5 (2) RRA 1976
Circumstances where race is a genuine occupational qualification; such as in project which requires a certain authenticity of race such as a crime recreation or when catering is involved as in the case of Panesar v Nestle 1980, in which a ban on beards and long hair was not held to be discriminating against Sikhs but justifiable on the grounds of health and safety in the workplace.
The Equal Pay Act 1970 is the legislation which is used to govern the rights of equal pay. Under Section 1(1), every woman’s employment contract is deemed to include a clause of equality. This entitles her to be paid at the same rate as a man in the same employment providing she can show one of the following conditions:-
· She is doing like work with the male colleague
· She is doing work rated as equivalent under a job evaluation scheme
· She is doing work of equal value to that of the male colleague
If it can be shown that there is a genuine material difference between her work and the male colleagues work, the equality clause will not apply. Dug dale v Kraft Foods 1977 shows how time when work is done is not a material difference.
Rainey v Greater Glasgow Health Board 1987 is the case of an employer who is a man brought in from a private sector to fit artificial limbs. It was held that he was entitled to more than the existing female employees because he is showing sufficient material difference in work.
EA 2010 now governs the regulations regarding sexual discrimination.
Section 11 EA 2010
Defines the protected characteristic of sex; Section 11 (a) states that it is a reference to man or woman.
Section 13 (6) EA 2010
Any less favourable treatment due to breastfeeding is still classed as discriminatory against her on the grounds of sex. This section also includes a type of discrimination has that has only recently been regulated by the EA 2010. It covers situations where an individual is perceived to have a protected characteristic, even though they may not possess it.
Section 18 (2) EA 2010
Discrimination at work due to pregnancy and maternity states that a woman is discriminated against if due to their pregnancy they are treated less favourably or due to illness which results in not being able to work.
The EA 2010 has re-established guidelines on discrimination on the grounds of disability; the main area of change is in the area of direct discrimination.
Section 6 (4a) EA 2010
With the exception of part 12 and section 190 of the EA 2010, a disabled person is considered as anyone who has had a particular disability, even though they may not be affected by it at present. The EA 2010 also removes the list of capacities which was established in the DDA 1995. EA 2010 states that “the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”
Section 13 (3) EA 2010
An employer may treat a disabled person more favourably than he would an employee without a disability, without any discrimination arising against the non disabled employee.
Section 15 EA 2010
Discrimination may arise due to a person’s disability
Section 15 (1) EA 2010
If an individual is treated less favourably in relation to their disability and the treatment cannot be proved of having a legitimate aim, the individual has a case for discrimination.
Section 15 (2) EA 2010
A person may not be liable if they can prove that they did not know, or could not be reasonably expected to know that the individual had the disability. This defence may be used in a case which involves a disability that is not well recognised.
Section 19 EA 2010
The effect of indirect discrimination; it states what treatment would be classed as indirect discrimination.
Section 19 (1) EA 2010
Provision or practice applied at work which puts a person with a particular characteristic which is discriminatory is not permitted.
Section 19 (3) EA 2010
Characteristics protected by the act, include: age, disability, gender reassignment, sex, beliefs, race and religion.
Section 20 EA 2010
An employer has to make adjustments to ensure that the disabled individual is not substantially at a disadvantage within the work environment.
Section 20 (3) EA 2010
Practice or a criterion that puts a disabled individual at a disadvantage must have reasonable steps taken to ensure fair treatment.
Section 20 (4) EA 2010
Any physical feature which puts a disabled person at a disadvantage must have steps taken so that the disadvantage can be avoided. This will be situations such as inputting a ramp or lift.
The EA 2010 also covers a new area of discrimination regarding gender reassignment.
This area is known as discrimination by association, this situation is where an employer may directly discriminate against an individual who does not have a protected characteristic, however associate with someone who does.
Section 7 EA 2010
Defines what is referred to by gender reassignment, and who is protected.
Section 7 (1) EA 2010
Anyone who has undergone, intends to or is currently undergoing gender reassignment procedures, is protected by this act. The main change is that a person is no longer required to be under medical supervision, a woman could decide to live as man without any medical procedures and still be covered by the act.
Section 16 EA 2010
Protects an individual’s right to have time off, due to gender reassignment procedure.
Section 16 (2) EA 2010
If a person is treated less favourably for using work hours to undergo gender reassignment surgery compared to another form of absence such as illness, action can be taken against the employer.
Section 9 EA 2010
Established what is meant by the term “race”.
Section 9 (1) EA 2010
Race is; colour, nationality, ethnic or national origins. BBC v Souster (2001) IRLR 150 shows there can even be a difference between nations which share the same passport.
Section 26 EA 2010.
Established an employee can be discriminated against by third parties, see the case of Conteh v Parking Partners Ltd, in which a parking attendant was racially abused by two users of a car park. If the EA 2010 had been in practice during this case they would have been charged due to the introduction of stricter guidelines on third party harassment, however there was not enough sufficient evidence.
The procedure for making a claim was introduced in Section 42 Employed Act 2002 which requires a claimant to complete a questionnaire. The employee must state why he thinks he is not receiving equal pay and name his employee’s.
In which the employer has 8 weeks to respond and give the following information:-
Whether the employee does receive less money than the comparator
If so, why
Whether he agrees that the employee is doing like work
Answers to any specific question raised by the claimant
If the claim is successful the employee can receive backdated payments of up to 6 years for the difference between the individual and the comparator.
In conclusion the changes to the law have given stricter guidelines on how direct discrimination, indirect discrimination and discrimination by perception. The employee now has more legal protection within the workplace, so that employers are not a superior party within the contract. Due to changes in society in terms of morals and ethnic’s these laws provided now ensure human rights are not mistreated and every individual in the workplace is based on the merit of their work and not by a certain aspect of there individuality.
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