Business and Employment Laws - Research Paper Example

Business and Employment Law Business law provides necessary legal provisions for ensuring optimum and equal opportunities for all sections of people in employment. It also emphasises on ensuring uniform opportunities to all the people irrespective of gender, race, disability and age. In other words, any employee shouldn’t be given favourable treatment in the name of gender, age, race and disability. Similarly employment law provides regulations for provision of safety and health measures at work place for the employees. This essay describes some important regulations governing employee indiscrimination and health. Let use first analyse the gender discrimination at work place. Though some specific acts were implemented to take care of the uniform treatment to all the employees irrespective of gender during their employment, the sex discrimination act (1975) assumes more significance. This act provides safety for women during the period of their employment and assures equal pay for the women along with men. It is in tune with the European Union’s Equal Treatment Directive and it prohibits all discrimination in employment on the grounds of sex including Gender (Sex Discrimination (Gender Reassignment) Regulations 1999), Marital Status (Hurley v Mustoe (1981)) Pregnancy, Sexuality (Pearce v Governing Body of Mayfield Secondary School (2001). These regulations were also supported by The Employment Equality (Sexual Orientation) Regulations 2003 in their objective of meeting justice for women’s equal rights along with men during employment. The equal pay for women along with men is very much essential (Shields v E Coomes Holdings Ltd (1978) ; Hayward v Cammell Laird Shipbuilders Ltd (1988)). The discrimination under name of sex is of mainly two categories. (1) Direct discrimination and (2) indirect discrimination If women are treated with less priority compared to men directly in the name of dress code, harassment etc. it would be treated as direct discrimination and strong punishment for employer would be resulted according to the Sex Discrimination Act 1975 Section 1 (Greig v Community Industry (1979); Ministry of Defence v Jeremiah (1980); James v Eastleigh BC (1990)). Women were discriminated in the cases like Schmidt v Austicks Bookshops Ltd (1978); Burrett v West Birmingham HA (1994) and Smith v Safeway Plc (1996) in the name of dress code which come under direct discrimination. Women harassment under the cases like Porcelli v Strathclyde Regional Council (1986); Moonsar v Fiveways Express Transport Ltd (2005) would also come under direct discrimination. The employers who indulged in the direct discrimination of women and involved in their harassment would be strongly punished according to the Sex Discrimination Act 1975 Section 4A and the Employment Equality (Sex Discrimination) Regulations 2005. It also postulates that the harassment of women in employment includes women harassment on the ground of her sex and if he engages in unwanted conduct that has the purpose or effect (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her. It will also include if he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect, (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct. The case of Burton & Rhule v De Vere Hotels (1997) and Jones v Tower Boot Co Ltd. (1997) also suggests that the employers may be liable for unlawful actions of their employees which take place during the course of employment. Direct discrimination of women also includes the discrimination by way of victimisation in the Sexual Orientation regulations. Indirect Discrimination was also well explained by the Sex Discrimination Act 1975 Section 1(1)(b) and the Employment Equality (Sex Discrimination) Regulations 2005 SI2005/2467: According to these acts, women may be discriminated against women indirectly and employer applies to her a provision, criterion or practice which he applies or would apply equally to a man, but which puts or would put women at a particular disadvantage when compared with men, which puts her at that disadvantage, and, which he cannot show to be a proportionate means of achieving a legitimate aim (Price v Civil Service Commission (1978); Perera v Civil Service Commission (1982)). Indirect women discrimination includes employee selection (EOC v Robertson (1980), terms of employment (Batisha v Say (1977); Owen & Briggs v James (1982), access to Opportunities for Promotion, Transfer or Training, or any other Benefits, Facilities or Services and dismissing a person or subjecting them to any other detriment (Burton v De Vere Hotels, Bracewell Engineering Ltd v Darby (1990)). However, some times, if the employer justifies that the necessity of the organization out weighs the extent of discrimination (Orphanos v Queen Mary College (1985); Singh v Rowntree Mackintosh Ltd (1979); Raval v DHSS (1985); Home Office v Holmes (1984) and Brook v London Borough of Haringey (1992)). Some defences were created for the direct discrimination in the name of genuine occupational qualifications (Rainey v Greater Glasgow Health Board (1987) like physiology, decency (Times v Hodgson (1981); Wylie v Dee & Co. (Menswear) Ltd (1978), personal services, single sex institutions, travel abroad and jobs for married couples (Tottenham Green Under-Fives Centre v Marshall (1991); London Borough of Lambeth v CRE (1990)). However, it is some times not possible to avoid discrimination in some nature of jobs. In case of charitable Institutions, National Security, Ministers of religion (SDA), Police and Prison Officers and Sport sex discrimination shouldn’t be considered as a punishable act. In some occasions, the organizations have to prefer women’s facilites and hence the concept of Positive Discrimination has arrived. For example in case of Pregnancy of women, the employer would be ready to provide Maternity Leave which wouldn’t be applicable to men (Dekker v VJM Centrum (1991)). Even the Employment Rights Act 1996, s.99 states that the dismissal of women on the sole ground of pregnancy is automatically unfair and would make the employer liable for the same. RACE RELATIONS ACT 1976 This act prohibits discrimination on “racial grounds”. No person should be discriminated under Section 3(1) of the Act in the name of colour, race, nationality, or ethnic or national origins (Mandla v Dowell Lee, 1983). It was also supported by the Employment Equality (Religion or Belief) Regulations 2003 and Article 39 of the Treaty on the European Union - freedom of movement of workers between EU member states. Disability Discrimination A disability is a physical or mental condition that has a substantial and long-term adverse effect on a person’s ability to carry out day-to-day activities (Law Hospital NHS Trust v Rush (2001)). A person shouldn’t be ill treated in the name of disability in employment (Tarling v Wisdom Toothbrushes (1997)) and Disability Discrimination (Meaning of Disability) Regulations 1996). 1995 Disability discrimination act provides sufficient protection for the disabled persons in employment. S.1(1) of this act mentions that a person would be considered disable for the purposes of this Act if he has 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. It also provides regulations under s.5(1) for punishing the employer if he discriminates against a disabled person for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and if he cannot show that the treatment in question is justified It is also the responsibility of the employer to make reasonable adjustments (Williams v J Walter Thompson Group Ltd (2005)). Age Discrimination The Employment Equality (Age) Regulations 2006 - SI No 2006/1031 also provides regulations for controlling the age discrimination. However, age discrimination can be justified where there is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. In this context, the efforts of the “Combined Equality and Human Rights Commission (CEHR)” are highly appreciable to promote Equal Opportunities ad Challenge Discriminatory Practices. HEALTH AND SAFETY AT WORK In addition to equal treatment and indiscrimination in employment, the employees must be provided optimum health and safety measures. Several regulations were made from time to time for ensuring better health and safety of employees at work. Health and Safety Executive 1996/7 Statistics revealed that 679 deaths in the workplace took place in UK along with 27,360 workplace accidents. The common law duty of care in UK postulates that an employer must take reasonable care to provide a safe place of work, a safe system of work, safe equipment and competent fellow employees (Donoghue v Stevenson (1932); Wilsons v English (1938) McDermid v Nash (1987)). Health and safety at work act (1974) also supports this view. S.2 of this act states that it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. They should also provide quality plant and systems of work that are reasonably practicable, safe and without risks to health. It is the duty of an employer in considering whether some precaution should be taken against a foreseeable risk, to weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences (Morris v W Hartlepool SN (1956); Latimer v AEC (1953); Bux v Slough Metals (1973)). If an employee is not taken care at work it will be treated as BREACH OF DUTY OF CARE/ NEGLIGENCE (Franklin v Edmonton Corporation (1966); Braham v Lyons & Co Ltd (1962); General Cleaning Contractors v Christmas (1953). Employers common law regulations of UK also ensure use of Safe Plant and Equipment by the employers (Taylor v Rover Car Co (1966)) which is also supported by The Employer’s Liability (Defective Equipment) Act 1969. At the same time, the employer must provide safe System of Work (Finch v Telegraph Construction and Maintenance Co. Ltd (1949); O'Reilly v National Rail (1966); Smith v Scott Bowyers Ltd (1986); Qualicost (Wolverhampton) Ltd v Haynes (1959); Walker v Northumberland County Council (1995)). The employee should be compensated in cases where the loss/injury must have been caused by the negligence of the employer and the loss/injury must have been reasonably felt. The employers should also take enough precautions to provide reasonable health care measures. They should be protected from negative effects of smoking (Waltons and Morse v Dorrington (1997)) and drilling. They should be provided with facility of cancer screening (Wright and Cassidy v Dunlop Rubber Co and ICI (1972)) and Repetitive Strain Injury (Pickford v ICI (1998)). The employees are also protected at work place under VICARIOUS LIABILITY which states that an employer may be liable for acts committed by an employee during the course of employment, including the committal of an authorised act in an unauthorised way (Limpus v London General Omnibus Ltd (1963); Century Insurance v NIRTB (1942)) and Daniels v Whetstone Entertainments (1962). The employers must ensure that all employees are covered under comprehensive insurance policies under Employer’s Liability (Compulsory Insurance) Act 1969. Some legislation like Occupier’s Liability Act 1957, Working Time Directive 1998 and Unfair Contract Terms Act 1977 provide the employee safety measures at work place. Conclusion Several legislation were made at national and international level to ensure better and equal opportunities for employees irrespective of gender, disability and age. Similarly, legislation and regulations were also enacted for providing safe and healthy atmosphere for workers at place of employment. However, employees also should take enough safety measures at work place and should fully cooperate with the employers. Training of employees regarding the Health and Safety (First Aid) Regulations 1981, Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995, The Management of Health and Safety at Work Regulations 1992, Workplace (Health, Safety and Welfare) Regulations 1992 and Health and Safety Display Screen Equipment Regulations 1992 is very much essential for ensuring safety and better health measures at work place. References: Batisha v Say [1977] IRLR 6. Braham v Lyons & Co Ltd [1962] 3 All ER 281. Brook v London Borough of Haringey [1992} IRLR 478. Burrett v West Birmingham HA [1994] IRLR 7. Burton v De Vere Hotels, Bracewell Engineering Ltd v Darby [1990] IRLR 3. Burton & Rhule v De Vere Hotels [1997] ICR 1. Bux v Slough Metals [1973] 1 WLR 1358. Century Insurance v NIRTB [1942] AC 509. Daniels v Whetstone Entertainments (1962) 106 SJ 284. Dekker v VJM Centrum [1991] IRLR 27. Donoghue v Stevenson [1932] AC 562. EOC v Robertson [1980] IRLR 44. Finch v Telegraph Construction and Maintenance Co. Ltd [1949] 1 All ER 452. Franklin v Edmonton Corporation (1966) 109 SJ 876. General Cleaning Contractors v Christmas [1953] AC 180. Greig v Community Industry [1979] IRLR 158. Hayward v Cammell Laird Shipbuilders Ltd [1988] 2 WLR 1134. Hurley v Mustoe [1981] IRLR 208. James v Eastleigh BC [1990] IRLR 288. Jones v Tower Boot Co Ltd. [1997] IRLR 168. Latimer v AEC [1953] AC 643. Law Hospital NHS Trust v Rush [2001] IRLR 611. London Borough of Lambeth v CRE [1990] IRLR 231. Limpus v London General Omnibus Ltd (1963) 7 LT 641. Mandla v Dowell Lee [1983] ICR 385. McDermid v Nash [1987] ICR 917. Moonsar v Fiveways Express Transport Ltd [2005] I.R.L.R. 9. Morris v W Hartlepool SN [1956] AC 552. Pearce v Governing Body of Mayfield Secondary School [2001] IRLR 669. Porcelli v Strathclyde Regional Council [1986] ICR 564. Shields v E Coomes Holdings Ltd [1978] 1 WLR 1408 (CA). Ministry of Defence v Jeremiah [1980] ICR 13. O'Reilly v National Rail [1966] 1 All ER 499. Orphanos v Queen Mary College [1985] IRLR 349. Owen & Briggs v James [1982] IRLR 502 Pickford v ICI [1998] 1 WLR 1189. Price v Civil Service Commission [1978] ICR 27. Perera v Civil Service Commission [1982] IRLR 147. Qualicost (Wolverhampton) Ltd v Haynes [1959] AC 743. Raval v DHSS [1985] IRLR 370; Home Office v Holmes [1984] IRLR 299. Rainey v Greater Glasgow Health Board [1987] AC 224. Schmidt v Austicks Bookshops Ltd [1978] ICR 85. Singh v Rowntree Mackintosh Ltd [1979] ICR 554. Smith v Safeway Plc [1996] IRLR 4. Smith v Scott Bowyers Ltd [1986] IRLR 315. Tarling v Wisdom Toothbrushes (1997) IDS Brief 597. Taylor v Rover Car Co [1966] 2 All ER 181. Times v Hodgson [1981] IRLR 530. Tottenham Green Under-Fives Centre v Marshall [1991] IRLR 231. Walker v Northumberland County Council [1995] IRLR 35. Waltons and Morse v Dorrington [1997] IRLR 488. Williams v J Walter Thompson Group Ltd [2005] I.R.L.R. 376. Wilsons v English [1938] AC 57. Wright and Cassidy v Dunlop Rubber Co and ICI (1972) 13 KIR 255. Wylie v Dee & Co. (Menswear) Ltd [1978] IRLR 103. Read More