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Published: Fri, 02 Feb 2018
UK laws and acts against the discrimination on the work
The aim of this piece of work is to overview the most important UK laws and acts against the discrimination on the work place up to date, concentrating, but not limiting to The Equality Act from 1 October 2010. It will critically assess how previous discriminatory acts and social regulation were implemented, as well as their actual effect on the problem. When the reader is presented with the main points of the UK legislation, the essay will argue that the present acts and legislations are not enough. For that reason further solutions of promoting equal pay and dramatically decrease if not end the discrimination in the work place will be proposed.
To get a clear understanding of the matters at hand, one has to understand the notion of discrimination in economics and more precisely in the work place. As stated by Kenneth J. Arrow (1971) by its simplest form the discrimination in the work field is simply based on effectiveness and productivity. It is not really based on personal believes and prejudice, but rather on statistics of work efficiency. With that said the root of discrimination in work is the perception of employers that based on gender, ethnicity, look and other traits, certain people will be less cost-efficient for their organisations and thus assume lower wages are fair and more appropriate. However in a developed, internationalised world and spreading democracy, such understanding should and must be considered wrong. Of course it must be noted that it is not an easy task to change the mindset of millions of people overnight. The UK government has taken point of that and had begun slowly adding laws and legislation to minimize discrimination and increase integration of BME (woman, black and minority ethnic) as well as those with disabilities, occupational segregation, employment opportunities and contractual status since 1970 with the Equal Pay Act (Linda Dickens, 2007). Even more troublesome is the fact that with the recent world economy breakdown and political distress in North Africa (Tunis, Egypt, Libya and Côte d’Ivoire), the general stress level amongst people has greatly increased. Having in mind that people tend to react more sharply and with less understanding when under pressure, it is easy to see how discrimination in present day increases dramatically (David S. Feather, 2011). It is clearly seen that if left without control, this trend would most likely have heavy consequences on global level. Even with the latest UK Equity act in 2010, the problem is far from getting solved. Thus further regulations are needed as soon as possible. The remainder of the essay is organized as follows:
Section 3 covers in detail the most important discriminatory acts committed in British workplaces up to present days.
Section 4 assesses the changes incorporated into The Equity Act 2010.
Section 6 is presenting possible ideas and solutions to be added to the act in the future, which will hopefully make equal pay and end discrimination at work not only an idea, but a world-changing fact.
Section 7 will conclude this piece of work by underlying the importance of solving the problem, as well as giving ideas for future work to be done to expand the theme even more.
Section 8 presents the used Bibliography.
The anti-discrimination acts in the UK legislation date back to 1970 with the introduction of the Equal Pay Act. Five years later the Sex Discrimination Act is enforced in 1975, followed by the Race Relations Act in 1976. Later an improvement to the Equal Pay Act is added in 1983. In the nineteenth century two new acts came to being: the Disability Discrimination Act in 1995 and the Human Rights Act in 1998. After that, there were various amends and improvements which lead to the Equality Act in 2010. Further detailed insight in the before mentioned acts follows below:
The Equal Pay Acts 1970 and 1983
Equal Pay Act (1970) was enforced at the end of 1975 and its aim to reduce the discrimination in pay between male and female workers. The Act was improved in 1983 to introduce the work of equal value and in present days, most cases are under this newer part of the act. It gives the opportunity a worker to claim pay equal to that given to an individual of the opposite sex. With that said, it is important to note that the act is closely bind to the European Union legal framework, which is designed to stop inequalities in pay on the ground of sex. Furthermore, it is worth mentioning that the Equal Pay Act relates only to sex discrimination. It is not connected what so ever to any kind of discrimination based on pay: disability and age for example. The last thing to note is the clear difference between the coverage of the Equal Pay Act and the Sex Discrimination Act.
The Act from 1970 operates by putting an equality clause into the employment contract. “If the terms of a contract under which a woman is employed at an establishment in Great Britain do not include an equality clause they shall be deemed to include one (The Equal Pay Act 1970)”. For the further understanding of the act an explanation of the term equality clause is needed. Such a clause is simply a provision which relates to terms (both concerned and not to pay) of a contract and has the two effects: “any term excluded is treated as included” and “any term which is less favourable is `modified as not to be less favourable`.
In terms of employment, the claimant must be “employed” and must set up a similarity with a person in the “same employment”. In other words they must be employed by the same or related employer either at the same institution or at some other organization where common terms apply. The comparison must be based on the foundations of one of the following:
Like Work – on that basis, the individual alleges that the labour she is doing is the same as or broadly similar to that done by a male employee. Any differences unrelated to the practical job, must not be such as to justify a pay difference.
Equally-Rated Work is related to where the work is different but equally-weighted under an evaluation scheme. Simply put an unequal rating evaluation scheme gives an employer a defence under the Equal Pay Act (1970)
Equal Value Work is where the job is considered different and it is not seen to be equally-rated. There is a possibility that a employment tribunal may call for an independent job evaluation expert to help them decide the case.
When one of the above comparisons is made, an equality clause is inserted into the contract, but is still a matter of the employer`s defence. This means the employer could state that the pay difference is legitimately due to a “material factor” which is different from sex. An example of such factors could be experience, skills or even economic factors. If such a factor is proved to exist, the clause does not take place.
Sex Discrimination Act 1975
The Sex Discrimination Act 1975 states it is illegal to discriminate on the basis of marital status or sex in recruiting, promoting and training. Such discrimination is in place when an individual of one sex is treated less favourably on the grounds of sex than an individual of the opposite sex would have been treated in the same situation. Indirect discrimination occurs when a condition or requirement applies equally to males and females, but the percentage of one sex that can suit the condition is much smaller than the percentage of the other sex. Except in the case it can be proved that the condition is vital for the position, indirect discrimination may have taken place. Furthermore, it has been recognized that discrimination against part-time workers may represent indirect discrimination against woman because generally, and in most organizations, the majority of the part-time workforce are woman. Another possible case of indirect discrimination is restricting employment by means of age limits. There is a third form of discrimination enclosed by the Sex Discrimination Act, which is victimization. It happens when a person is discriminated against for the reason of exercising their rights under the very same Act.
It is important to be understood that sexual discrimination is judged to be unwanted attention by the injured party of the conduct and not the person responsible for it. There are many forms of sexual discrimination, a typical examples include, but not limit to:
In terms of Direct sexual discrimination that could be when a man or woman is demoted upon their return from paternity or maternity; a woman who is cast out from social or corporate meetings for the reason that the group consists of majority of females or males; a corporation employs or promotes a male or female member of staff with fewer qualifications or less experience over an individual of the opposite sex; a woman who is not presented with employment, because due to the nature of the work – physical or in other words inappropriate for the females work.
In terms of Indirect sexual discrimination it can occur when an entity`s working methods put male or female employees at a disadvantages by creating full-time working patterns only, require the person to change place or work unsociable hours where a mother has childcare commitments or even put weight or height restrictions.
The Sex Discrimination Act 1975 also includes Sexual Harassment, which consists of verbal harassment such as curiosity about ones sex life, offensive comments, assurances or intimidation concerning employment situations in relation to sexual favours as well as insulting remarks about body, clothing or appearance. Non-verbal harassment includes demonstration of sexually explicit objects such as pictures and magazines or simply looking or staring at a someone`s body. It is referred to physical harassment when matters such as unwanted physical contact including caressing, hugging, kissing or groping occurs. Other more severe forms of physical harassments are sexual assault and rape.
However it is seen in many cases trough history that there is a big flaw of the Act. That is its easily abused nature. As in many cases it is hard to prove ones innocence if a charge is intentionally raised with ill intent by the “victim”. In majority of the situation, woman tend to use this act as a mean of manipulation, which can be seen as a discrimination against men.
Race Relations Act 1976
The Race Relations Act 1976, otherwise known as RRA makes it illegal to discriminate on the base of race, ethnic, colour, nationality or national origin. This Act covers recruitment, promotion as well as training. The Act also includes direct, indirect discrimination and victimization. Suitable examples would include, but not limit to recruiting from sources, which leave out areas of settlement of minority ethnic groups, or insist on British qualifications in which way those minorities are being indirectly excluded. Word of mouth employment in an institution where people from ethnic minority communities or foreign hard backgrounds are under-represented would also be a good example of indirect discrimination. It is also worth to note section 8 of the Asylum and Immigration Act 1996 (coming into force on 27th January 1997) which is also important. It covers the issue of illegitimate working and makes it a criminal offence to hire a person who is not permitted to live or work in the United Kingdom. The act implies that employers need to carry out a number of checks before employment commences so that it is insured new employees are indeed entitled to live and work in the UK. The Commission for racial Equity has warned that employers should ensure that any changes they make to their recruitment and selection procedure to comply with the new act do not put them in breach of the Race Relations Act. This is said in particular in relation to the fact that employers must guarantee that the previously mentioned checks are carried out at the same stage and in the same way for all candidates and without bias or discrimination on the ground of their ethnic background, race or colour. With this being said it is to be noted that the following act are prohibited by the Race relations Act 1976: The Act makes it illegal for an employer to subject to harassment a member of the staff or an individual who has applied to him for employment; Discrimination against another as an applicant for employment or as an employee is against the law; The Act also implies that it is illegal for a principal to discriminate in a manner specified in The Race Relations Act against a person who is employed not by the principal himself but by a third person, who provides the individual under a contract made with the principal. Other prohibited acts include discrimination against persons receiving training, discrimination and harassment by employment agencies as well as for the employer to induce a person to do any of the previously described acts.
Disability Discrimination Act 1995
The Disability Discrimination Act 1995 in short DDA was passed with the clear aim of ending the discrimination against disabled individuals in the workplace. This Act has been amended and added to a number of times in order to improve its effectiveness. Most significantly in relation to employment those amends are represented by the following Acts: The Disability Discrimination Amendment Regulations 2003, which brought changes to employment; The Disability Discrimination Act 2005, which covers private clubs, councillors etc. Also it is to be noted that The exemption for small firms was repealed by the Disability Discrimination Act 1995, later amended by regulation 7 in 2003.
The Disability Discrimination Act 1995 refers both to disabled applicants for employment and to disabled employees. It applies with equal strength to internal trawls, notices and to outside adverts. It includes work conditions, employee benefits, dismissal procedures, terms and conditions, recruitment and selection as well as opportunities for promotion, career development and training. Important parts of the law were introduced and enforced on 2nd December 1996. Since October 1999, service providers are obliged to make “reasonable adjustments” for disabled people, for example to provide extra help or make changes to the way services are provided. Five years later in 2004 service providers had also to make appropriate adjustments in relation to the physical features of premises to overcome physical barriers to access. A new duty to promote disability equality was introduced in 2006, which gave rights to disabled people as collective entity rather than as individuals. In terms of employment this Act is worth noting for enforcing employers to make “reasonable adjustments” to the premises of working practices to permit a disabled person to be employed. The above mentioned adjustments refer to mechanisms helping a wide range of disabilities including physical disabilities, sensory disabilities (hearing or visual impairments), learning difficulties, mental health inconveniences as well as progressive conditions such as Aids, Multiple Sclerosis and more.
Human Rights Act 1998
Although not closely connected to the employment regulations, this act should be mentioned in terms of recruitment because of the fact that it outlaws discrimination on ground of sexual orientation, religious believes as well as family circumstances both in society and in the workplace. Most notably however is the fundamental human right to be free from slavery and labour that is forced and not of free will.
The Equality Act 2010
As seen, there were numerous Acts that tried and to a considerable amount managed to transform the UK legislation to one that is clearly against discrimination and takes most severe measures against it. The Equality Act 2010 overriding aim is to achieve simplification, harmonisation and modernisation of the equality as described by Bob Hepple in The Equal Rights Review, Vol. Five (2010). The Act also implies that there must be no hierarchy of equality. In short terms the Act brings disability, race, sex and other previously mentioned grounds of discrimination within one piece of legislation. Because of its overriding nature, it makes various changes to almost all of the existing anti-discrimination laws. Recognized as problematic by the UK legislation, the Equality Act 2010 covers the flaws of the previous acts, by introducing clearer definitions thus decreasing the possibility of a misinterpreted clause. It amends the laws in relation to dual discrimination, discrimination by association and perception, transparency, enquiries made prior to employment, disability related discrimination, the objective justification test and the definition of disability.
Before the coming of the Equality Act 2010, there were variations of tests which aimed to establish an objective justification. The purpose of the Act is to create a single objective justification test and replace the use of the different past tests. This means that the employer or service provider is required to show that its conduct is a proportionate means of achieving a legitimate aim. For the employment this change means a higher threshold than the test previously used. In other word after its passing in 2010, now it is more difficult for employers to justify treatment which in core is less favourable. The downfall of this however is the fact that despite the new test, it is proportionately harder for service providers to actually prove it. As mentioned earlier, the definition of disability is broadened under the Act which makes it simpler for all the parties involved such as service providers, employers and the individual with the disability to understand the rights given. In terms of discrimination it is to be noted that the Equality Act 2010 replaces the previously widely criticised notion of disability related discrimination, by replacing it with two ways of claiming for disability discrimination: being discriminated because of disability and indirect discrimination.
In terms of employment, an important amend is that the act discourages employers from asking questions concerning a job applicant`s health except if the enquiries are for a particular permitted purpose. This includes asking question regarding whether a specific applicant has a disability, as well as enquiries on application forms, medical questionnaire or enquiries made during an interview. The permitted purposes for such questions are: Monitoring diversity in the applications; establishing whether the individual will be able to carry out a task which is intrinsic to the employment; establishing whether the applicant will be able to comply with the requirement of attending an interview or establishing whether the employer will have to make “reasonable adjustments for the individual to undergo an interview or any other assessments. Furthermore the Equality Act 2010 makes harassment based on association or perception more clearly illegal, this applies to the employment sector as well as to services and education. In terms of transparency, the Act includes an obligation on public authorities to report their disability employment rate. There is a clause that enables dual discrimination or in other words, an individual is able to make a claim of discrimination on two separate grounds. This however is limited to only two grounds. An example of this could be an individual who is being discriminated against due to both their race and due to being disabled.
A possible solution
With the overview of the Acts to date, one can conclude that the UK legislation is indeed on a right track to handle discrimination in the workplace. However it can be argued how effective they are. In the author point of view, a more radical approach for fighting against discrimination is needed. So far the Acts and laws are oriented towards the equal rights of individual with different race, sex, colour, ethnicity and or disability. In terms of social discrimination that is a good approach, as it integrates everyone into the society, but if associated with employment, there are different economic goals. An employer will tend to maximise profits of his firm and thus will search for the best ratio of work labour and cost. With that said it is practically impossible to end the discrimination in employment and promote equal pay on the simple basis that there will always be a certain group of people best suited for a target job. With that being said a possible solution to that problem is imposing quotas on employers when recruiting new labour. It could be as such as to be closely tied with the demographic statistics. In other words an Act that enforces employers to hire individuals, based on proportion of the total population. For example on the grounds of sex, if males and females in the population are roughly the same in number, an employer could be obliged to hire 50% man and 50% woman. On the basis of race, colour and ethnic origin, an organisation could be forced to hire the same percent of for example black people as their representation in the population. In terms of disabilities this could be trickier, but still a quota including the same proportion of disabled people to be hired can be introduced and then split between different categories of disabilities again related to the statistical data.
At first this solution could be looked as even more discriminated, but if one thinks about it, in that way the completion for a job will be only based on the personal skills and experience of the employee. This is so, because people will compete with other individuals facing exactly the same conditions. In terms of equal pay, it is up to the UK government to imply that each different part of the employment receives equal pay. In other words if a work is segmented and simplified in terms of its employment structure it would be easier to fight discrimination. An interesting example is the making of a cake. One has many ingredients to choose from, but he chooses the most appropriate ones. If however he is obliged to use all the ingredients he will try to make a tasty combination from all of them. In regards to employment instead of a cake we have a population and instead of ingredients we have different people from various race, colour, nationality, ethnic origins and disabilities. If employers are obliged to include one from each, organisation will find a way to make “the cake tasty”. A plus to that idea is its relation to the demographic statistics as this makes it easier to define and tune the actual per cent of people to be employed from each type.
Furthermore to fights off discrimination, a long-term step must be made and thus another idea comes to mind – people to be educated and given reason not to discriminate, but to live as a whole and help each other. This process is started and can be seen in a growing number of educational institutions, but needs to keep improving and in time one will have the chance to see whether this hypothesis will prove to be right.
Today everyone is talking about democracy, globalisation and how there should be a world peace. Instead all we can see on the news, in the newspapers, in films and on the media in general is distress based on different interests, religions, ethnic backgrounds and more. As relatively little part of the law, the antidiscrimination Acts in the UK and in the world as whole are a key if we are to achieve anything but self-destruction. The mentioned solutions and ideas relate only to employment and by no means are acceptable outside of it. They are to make the life of the government easier and to provide as many people from different backgrounds equal chances of securing a job and a salary to keep a good life standard.
As a future improvement of this piece of work, a look into more specialised literature, deepened analysis and statistical data are needed. A possible employment structure model of the proposed solution could be included and tied to the demographic data bases in the UK, as well as to the various legislations and Acts.
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