Law and Disability at Work - Essay Example

LAW AND EQUALITY Author’s name Institutional affiliation Instructor Course Department City/State Date Law and Equality Part A: Law and Disability at work Introduction The Equality Act that was postulated in the year 2010 provides stipulated regulations that make it unlawful for any employer or any other person to discriminate against employees due to their physical disability or mental disability (Nancy 2007 67). Additionally, under this act, it is believed that individuals can be classified as disabled if they possess a physical or mental impairment which has a substantial long-term or adverse implication on the individual’s capability to conduct their normal activities on a daily basis. Moreover, in the day modern workplace, Disability can be categorized as any physical condition that hinders an individual to undertake activities such as using a computer, telephone calls following instructions, interacting with colleagues carrying everyday objects and driving (In Gatchel & In Schultz, 2014, 47). The law under the Equality Act 2010 offers protection of the disabled people from discrimination in some areas including at their workplace. Types of Discrimination against the disabled. It is universally accepted that there are four basic types of discrimination that the disabled are subjected. This types of discrimination include direct discrimination, harassment, indirect discrimination, and victimization Direct discrimination is believed to occur when an individual is treated in a different manner as compared to other people just because they are disabled (Gold & Shuman 2009, 431). For instance, if an employer does not give opportunities to physically challenged people just because they don’t want their company to have disabled workers, then this is a direct discrimination. In this case, in this case, an individual is treated in an unfair manner or rather less favorably due to their disability, an individual's close relationship with a disabled person (direct discrimination by association), and a perceived disability (direct discrimination by perception) (O'Brien, 2001,103) Indirect form of discrimination at workplace can occur where a rule, procedure or practice related to workplace is applied to all the company employees but in the process, it disadvantages the disabled (Piechowski, 2011 98). Additionally, a disadvantaged job applicant or employee at any one point who is claiming to have been sidelined or disadvantaged, must be in a position to clearly show how the company have disadvantaged them on a personal level and how the discriminative activity has impacted other physically challenged individuals seeking employment negatively. However, it’s acknowledged that, in some controllable or limited circumstances, it is believed that discrimination against the physically challenged or rather the disabled can be deemed necessary if it works to promote the productivity of the business ( Fletcher & O’Brien 2008 530). For instance, if an employer rejects an application from a disabled individual suffering from a severe back problem such that the individual cannot undertake heavy duties like manual lifting which may basically be an important and essential part of the job, then this indirect discrimination can be classified as necessary for the success of the organization Harassment at work place is also considered as another type of discrimination against the disabled (Woodhams &Danieli 2000 403). In this type of discrimination, it is believed to occur whenever an unwanted behavior related to an individual’s disability results into distressing, offensive environment or humiliating for that individual in such a way that they cannot be in a position to defend themselves. However, it is also important to note that, the disabled should also try as much as possible to avoid situations or behaviors that may lead them to get harassed (Danieli & Wheeler, 2006 487). Victimization is another type of discrimination that is believed to be an act of treating a physically challenged individual in an unfair and coercive manner because of their advocacy or their support to the complaint that is postulated about disability discrimination (Lawson 2011 360). Additionally, in this case, victimization can also be likened to discrimination arising from disability in such a way that someone is unfairly treated due to something that is associated to their disability state but not necessarily because of the disability in essence. However, any physically challenged individual who has undergone this type of discrimination, cannot compare themselves with another type of disabled person’s treatment. Another common type of disability that is in most cases prevalent at work place revolves around the employers delay to make reasonable job adjustments for a physically challenged employee or a disabled job applicant (Fletcher & O’Brien 2008 527). In this case, if the job adjustments are deemed to be reasonable, then an employer must be able to adjust them in order to see to it that the company’s workplace practices do not seem to sideline or disadvantage the physically challenged individuals or employees who are already working with the company (Danieli & Wheeler, 2006 489). Therefore, it is important that the company employers should establish strategies that ensure that they have well-stipulated regulations and rules that may help to curb discrimination of physically challenged individuals in selection and recruitment, sickness absence, determining terms, conditions and pay, promotion, training and development, redundancy, dismissal among others. Recommendations on the issue of law and disability at workplace If a feature at work makes an employee who is disabled to be disadvantaged, an employer should be in apposition to try and make reasonable adjustments including having a meeting with the disabled so as to try and ask them some of their opinions on how their working environment or their situation at work can be improved to make their working at the company better and enjoyable (Danieli & Wheeler, 2006 489). For instance, a company can supply a few special chairs; computer assisted piece of equipment or rather a few privileges here and there. In simple terms, it can be argued that reasonable adjustments at workplace to meet the needs and demand of the physically challenged might also revolve around switching some obligations and duties ( Fletcher & O’Brien 2008 530). However, the roles and functions that are essential to that obligation duty may not necessarily have to be changed. An example of a court issue and ruling on disability and work In the UK, Europe, and Australia, there have been quite some issues and court cases as far as discrimination of disabled persons at the work place is concerned (Danieli & Wheeler, 2006 487). One funny aspect of this cases is the fact that so many individuals believe that obesity should be classified in the category of disability. However, according to the most court ruling, it is now official that obesity in its sense is not a disability. But in cases where obesity results in an impairment that is long-term and adverse then this aspect can be categorized as a disability by a work employment tribunal. In other words, obesity is classified as a disability depending on the circumstances at hand (Fletcher & O’Brien 2008 530). Nevertheless, the company administration needs to establish measures in place that will ensure that the obese are not discriminated by being subjected to offensive behavior or comments due to their weight. Discrimination claim if an individual is physically challenged. If a physically challenged worker feels that they have been sidelined, despised or discriminated against in any manner, they must be in a position to bring forward their assertion to an employment tribunal (D'Andrea Corry & Forester 1995 49). However, it is acknowledged that the best way of approaching such kind of situations is by first approaching their employer about the discrimination claim to try and establish the best way to sort out the issue informally. If the issue at hand persists, it is then that they may approach the employment tribunal for help (Loisel & Anema, 2013 90). Individuals who wish to have their issues sorted by the employment tribunal are required to pay for the tribunal services. In this case, the first initial fee that is paid is for the issuance of the claim which is followed by a second pay if the claim will be passed for hearing. In an employment tribunal, it is known that there are two kinds of tribunal fee depending on the level and type of the complainant claim. Public sector Equality Duty This duty which is basically found under the Equality Act 2010 section 149, applies to all public bodies as well as any bodies that are involved with conducting public functions. Additionally, this law supports appropriate decision making by seeing to it that the public bodies takes into consideration how a number of unique people can be impacted by the public body’s activities (Piechowski, 2011, 101). Moreover, this duty assists public bodies in delivering services and policies which are more effective, accessible to all and efficient in meeting the demand and the needs of the individuals. All this activities are achieved because the public duty requires all the bodies engaging in public activities to ensure that; first, they eliminate any form of unlawful discrimination such as victimization, harassment and associated forms of discrimination (Harder Wagner & Rash, 2014 112). Second, they have to exercise equality of opportunity between those individuals who are protected under the Equality Act and those who are not covered. Finally, they have to ensure that they foster good relations between individuals who share a guarded common attributes and those people who are not. In other words, adhering to this Act as clearly means that, any public body needs to incorporate this activity in their decision making process which must also revolve around the provision of a safety management system and a robust health management system. Conclusion The law under the Equality Act 2010 offers protection of the disabled people from discrimination in some areas including at their workplace. Additionally, in the UK, Europe, and Australia, there have been quite some issues and court cases as far as discrimination of disabled persons at the work place is concerned. Therefore, it is important that eh employers establish rules and policies that makes the working of the disabled very effective by making them feel loved and valued, in the process, their work rate will increase. In simple terms, the Equality Act 2010 should be incorporated into the office policies, regulations and procedures governing the company. Reference list D'Andrea, J. A., Corry, D. J., & Forester, H. I. (1995). Illness and disability in the workplace: How to navigate through the legal minefield. Aurora, Ont: Canada Law Book. Danieli, A. and Wheeler, P. (2006) Employment policy and disabled people: old wine in new glasses? Disability and Society, 21:5, pp. 485 – 498 Fletcher, A. and O’Brien, N. (2008) Disability Rights Commission: From Civil Rights to Social Rights, Journal of Law and Society, 35:4, pp. 520 – 550 Gold, L. H., & Shuman, D. W. (2009). Evaluating mental health disability in the workplace: Model, process, and analysis. New York: Springer. Harder, H. G., Wagner, S., & Rash, J. A. (2014). Mental illness in the workplace: Psychological disability management. In Gatchel, R. J., & In Schultz, I. Z. (2014). Handbook of musculoskeletal pain and disability disorders in the workplace. Lawson, A. (2011) Disability and Employment in the Equality Act 2010: Opportunities seized, Lost and Generated, Industrial Law Journal, 40:4, pp. 359 – 383 Loisel, P., & Anema, J. R. (2013). Handbook of work disability: Prevention and management. New York [etc.: Springer. Nancy J H. (2007).Different plays, same script: Disability and accommodation in the workplace. ED.D. University of St Thomas (Saint Paul, Minn). O'Brien, R. A. (2001). Crippled justice: The history of modern disability policy in the workplace. Chicago: The University of Chicago Press. Piechowski, L. D. (2011). Evaluation of workplace disability. New York: Oxford University Press. Woodhams, C. and Danieli, A. (2000) Disability and diversity – a difference too far? Personnel Review, 29:3, pp. 402 – 417 Part B: Law and Equality at work place: Case Study Relevant law to this case study Discrimination at work because of gender or sex is acknowledged as when an individual is unfairly treated owing to the fact that they are either a woman or a man. In this case, Jess was subjected to patronizing and inappropriate comments by her work colleagues in which most of them referenced her breasts on a consistent level (Kirton & Greene, 2015 56). This can be deemed as a form of harassment according to the Equality Act 2010.Under this law Act, such kind of harassment especially in areas such as education, employment and training, housing, public activities, and during the provision of goods and services like transport, entertainment, and banking are condemned and prohibited. Additionally, Jesse argued that this kind of tormenting behavior not only affected her personal life but was also making her to feel that her work was not valued. In simple terms, The Equality Law Act 2010 provides provisions that an individual can follow if they feel that they have been discriminated against or harassed but their complaints are not being dealt with since the Equality Act 2010 prohibits issues of discrimination because of ones gender or sex (Heyns, & Viljoen 2002 67).  .Inn this case, this can be taken as a harassment type of discrimination. According to the Equality Act 2010, it is argued that when it comes to inequality and discrimination because of sex, it does not necessarily need to be a deliberate action (Busby 2011 66). In other words, an individual may be engaging in a discriminative activity without necessarily realizing the consequences or the meaning of the discriminative activity. For instance, When Jess complained about the humiliating behavior, some of their colleagues advised her to take it as a compliment which basically meant that they were indirectly discriminating her for being a woman in a male-dominated office. However, this may still be categorized as a discriminative activity. The risks the company is facing Nevertheless the Sexual Discrimination Act 1975 section 65 of the UK law against sexual or gender discrimination does not permit what others call positive discrimination while favoring one sexual gender. For instance, after reporting the harassment and humiliating behavior to the director, the digital marketing manager’s position which Jess was serving at that time was declared vacant .When she reapplied for the job even though she met the requirements, the director chose not to shortlist her on the basis that she disrupts the flow of work. According to the equality Law Act, this cannot be classified as positive action but rather victimization because of the gender complaint she had lounged earlier. Besides, her colleagues and other senior officials advised her that she should take the harassment as a compliment. In so doing, the company risks being sued for discriminating an office worker on the basis of her sexual affiliations. For instance, in the case law involving Akerman-Livingstone V Aster Communities (EHRC intervener), it was established that the court of appeal wrongfully held that in regards to the claim for owning residential premises, the court of appeal should as well take the same methodology to a defense which raised an argument of unlawful discrimination stipulated under the equality Act that was postulated in the year 2010 as to a defense, according on Article 8 postulated in the European Convention on Human Rights. In other words, the outcome of this case clearly indicates that the case outcome maintains the dissimilarity in the proof burden which applies to the own defenses. Therefore, any organization that establishes dissimilarity in the judgement of the situation at hand, will be held accountable by the law. Moreover, according to the equality ACT 2010, the law prohibits what others call positive discrimination but rather permits positive action. In this case, when the marketing director chose not to shortlist Jess for the position, Jess might file a company to the employment tribunal which may not work well for the company’s image. For instance, the law is very clear that the employer is not permitted to recruit women in the sense that they are promoting women simply because they were not given an opportunity in that particular job role. In other words, this kind of positive discrimination cannot be necessarily be classified as positive action which the law permits. The equality law also covers discrimination against gender, pregnancy as well as discrimination against maternity leave. The company also risks being considered as a discriminatory company by its clients, suppliers and other potential employees, because of the way they treated Jess. In other words, it is more likely that if Jess decides to sue the company, the decision will work in Jess’s favor because the company did so little to curb the harassment that Jess had reported to them earlier. Hence According to the Equality Law and the Sexual Discrimination Act 1975 section 65, it is very discriminative to treat an individual less favorably due to their gender difference from the other individuals of the other sexual gender would be treated given the same circumstances. For instance, In Minto V Wernick Event Hire Ltd, the remarks that were occasionally made about the male worker were upheld by the tribunal to amount to discrimination sexually and harassment. In other words, what can be considered as a normal banter can at one point transforming into abusive language. Recommendations to solve this situation The law postulates that it is very discriminative to establish a policy, practice or a rule that an individual of a particular gender or sex will be less likely to abide by and in the process, makes the individuals to be disadvantaged. In this case, in order to help solve the Jess situation, the company would have cautioned the other male workers about this humiliating behavior and in the process, caution them of the fact that this behavior is prohibited under the law hence the next time they engage in such behaviors, there will be punitive measures taken on them. Additionally, since the marketing director failed to solve the situation when Jess reported it to him and besides, the company should ensure that its managers and directors are well trained and aware of the equality Law Act 2010 to help them deal with such situations in a very polite manner (Sciarra 2001 101). However, the law postulates that if the issue or policy an individual is complaining about can be proved to be genuine or it has basically nothing to do with gender or sexual discrimination, then the complaint won’t be classified as discriminative. For instance in Furlong V BMC Software Ltd, the complaint had claimed discrimination and incidents of harassment in a number of gender-related issues, the tribunal concluded that there was incidents of sexual harassment and sexual discrimination. In the process the judges suggested that the company employer should review the educational programs that are meant to give awareness to their workers. According to the law, it is universally acknowledged that the company or organizations employers are responsible for managing, identifying and mitigating the risk associated with harassment and discrimination at the workplace (Fisher, 2007 505). In this case, the director should have established policies and regulations that may help to regulate this behavior at the workplace by detailing the responsibilities of employees so as to increase awareness and knowledge of the challenges and issues facing their workforce and in the process, establish favorable standards that can be used to guide and control behavior at work place (Dickens, 2007 470). However, this policy may be either be made formal or not formalized but irrespective of the case, Jess’s colleagues should still be responsible to uphold the behavior expected of them in the workplace and the choices and options available to them at work (In Heymann In Stein & In Moreno, 12). How to avoid recurrence of the same issue Because of the cultural diversity that is prevalent in most organizations, it is important that employers should see to it that they provide a very clear staff statement that implies that harassment and discrimination at work is prohibited and will not be tolerated at all costs and as a result, it will be classified as a disciplinary offence (McDonald 2013 94). Additionally, the administration and the employers should also ensure that they are very clear about what institutes an unacceptable conduct at workplace on the part of the workforce and service users (Acker, 2012 210). In so doing, each and every employee will be guided by the code of ethics that is stipulated at work hence cases of victimization, harassment and discrimination on the basis of gender or sex will be eliminated (Goldscheid, 2013 95) . Another possible way of eliminating such gross conduct can be achieved when the manager consults with their employees as well as their representatives about assessment of the risks associated with such conducts and potential actions that can be taken. For instance, if the director had cautioned Jess’s colleagues. They would have tried as much as possible not to engage in this humiliating behavior again (Ellis & Watson 2012 23). As a result, the employees will be more responsible and cautious about engaging in discriminative and violence behaviors since they participated in decision making process of the policy. In some instances, an informal discussion can play a very crucial role in correcting this behavior. In other words, at times some employees are not aware if what they are doing is harassing or discriminating against the others (Due Billing, 2011, 298). As a result, an informal discussion with them may help to establish a better comprehension and understanding that the gross behavior will be corrected (Burca & Weiler, 2001 37). However, informal approaches can sometimes blur the issue at hand and even result in more challenges later on. Thus it is important that the managers and employers need to do a careful judgment on whether to employ informal or formal techniques in such matters. Reference list Acker, J. (2012). Gendered organizations and intersectionality: problems and possibilities, Equality, Diversity and Inclusion: An international Journal, 31:3, pp. 214 -224 Burca, G. ., & Weiler, J. H. H. (2001). The European Court of Justice. Oxford: Oxford University Press. Busby, N. (2011). A right to care?: Unpaid care work in European employment law. Oxford: Oxford University Press. Dickens, L. (2007). The road is long: Thirty years of equality legislation, British Journal of Industrial Relations, 45:3, pp. 463 – 494 Due Billing, Y. (2011). Are Women in Management Victims of the Phantom of the Male Norm?, Gender, Work and Organization, 18:3, pp. 298 - 317 Ellis, E., & Watson, P. (2012). EU anti-discrimination law. Fisher, V. (2007).You need tits to get on around here: Gender and sexuality in the entrepreneurial university of the 21st century, Ethnography, 8:4, pp. 503 – 517 Goldscheid, J. (2013). Gender and equality law. Farnham, Surrey, England: Ashgate. Heyns, C., & Viljoen, F. (2002). The impact of the United Nations human rights treaties on the domestic level. The Hague [u.a.: Kluwer Law Internet In Heymann, J., In Stein, M. A., & In Moreno, G. (2014). Disability and equity at work Kirton, G. and Greene, A. (2015) The Dynamics of Managing Diversity: A Critical Approach. 4th edition. Oxford: Butterworth Heineman McDonald, S. (2013). Networks, work, and inequality. Bingley, U.K: Emerald. Sciarra, S. (2001). Labor Law in the Courts: National Judges and the ECJ. Oxford: Hart Pub. Read More