Anti-Discrimination Law in the UK - Essay Example

Anti-Discrimination Law in the UK The Equality Act 2010 undertakes to create legislations in the United kingdom that deal with promoting equality versus preventing discrimination against what is referred to as the ‘protected characteristics’ within the society (Doyle, 2010). In writing, it consolidates prior legislations against discrimination for Wales, England and Scotland. It comprises 218 sections and 28 schedules applicable in all sectors of public life and largely revokes most of these prior laws on the subject. These protected characteristics include disability, race, religion, gender reassignment, age, religion, maternity or pregnancy, sexual orientation and sex (Wadham et al., 2010). What has the provisions of this Act imply to organizations? In the performance of its functions, a firm must pay special cognizance to three aspects covered by or under the Act (Rivers, 2012): 1. Avoid and eliminate any conduct that has the effect of constituting harassment, victimization, discrimination or any other prohibited conduct 2. Culture equality for every persons who share the ‘protected characteristics’ and those who do not with regard to opportunities 3. Encourage proper relations amongst individuals with the relevant protected characteristics and also those who do not Section 71 of the Act regards discrimination against sex in relation to pay. Section 77 refers to discrimination through the discussions over terms of pay. Section 78 provides regulations on gender pay gap (www.legislation.gov.uk, 2010).These sections have gone some way to strengthening the statutory enforcement of equal pay between men and women within public entities. However, government’s failure to enact one of these three critical provisions may ultimately hamper the effectiveness of the Act. In analysing the aforementioned sectional provisions and assessing their potential impact in combatting discrimination with regard to employment, it is imperative to understand first what variables are prevalent in laws on societal equality (Rivers, 2012).The mystery that is equality rests within the (misconception in) Western political tradition that views equality as a fundamental and universal moral characteristic of human beings; of equal dignity and worth (Dworkin, 2002). It stretches beyond the Aristotelian definition of a purely formal existence, which postulates that likes be treated similarly, and differences proportionately. Most importantly is the acknowledgement of the uniqueness of human beings. Therefore, equality would intimate that people be valued both in their uniqueness and similarities. Firstly, we address the object variable which answers the question, ‘what exactly is subject to the equality principle?’ This is easily answerable at a highly abstract level. All humans being equal in rights and dignity deserve equal respect and concern. However, in practice this presents a fairly complex ideal covering not only civil and political rights but a myriad of welfare, opportunity and resources. John Rawls identified within his justice theory two principles of equality in which the justification of differences was only valid should they benefit the least well-off and related to positions held under fair opportunities. These were equality of liberty and that of fundamental (basic) social goods. Secondly, the characteristic variable, which defines who the recipient(s) of the principle are and why they merit such special treatment. Article 14 of the European Convention of Human rights states that all rights should be enjoyed by all regardless of distinction. Initially and subsequent to this proclamation, there was much resistance towards identifying specific benchmarks that merit special attention. Presently, practical concerns aimed at addressing ingrained bias and social exclusion have developed into a rallying cry for equality as a human right-born out of Civil Rights movements (Rivers, 2012). From this understanding, several attributes were developed as benchmarks for equal treatment herein referred to as the ‘protected characteristics.’ The limits to excision within these benchmarks yet remain uncertain. This ambiguity presents virgin-ground for which disputes can culture and spillover into the public domain. Similarly in the case of employment, lack of a reasonable degree of social consensus can be a source for conflict between employees, their unions, government and the private sector. As a consequence of the law’s irresolution, the courts now bear the general test of reasonableness in solving disputes so arisen. Thirdly, we need to address the value variable. Is equality measurable? In the context of these sections, we address ourselves to the question of how much as individuals, as government or as a society are we prepared to incur for equality? It seems theoretically palpable that a resolution of tensions between various special-interest groups versus those outside (or non-special groups). However, practically this seems more ominous with various trade-offs at play in the provision of equality and affirmative action. Once again to the unlimited extent of application of equality legislations, the law becomes handicapped in prescribing precisely how much can be awarded for offences made in breach of the laws. The provisions of the universal Bill of Rights notwithstanding do the compensation to special-interest groups supersede the welfare provision to the greater society? Do we simply ignore the cost to private entities and common practices? What is the economic symbolism of these actions in public and private establishments? The fourth is the domain variable. It answers the question where the concept of equality applies or which concept of equality is to be applied. A distinction between which aspects of life are equality subject to public and legal concern is equally essential. Adopting Michael Walzer’s assertions about the ‘spheres of justice’ and how expandable they are, we can extend this definition to mean ‘spheres of equality.’ Equality law has recently expanded to include private associations, provision of commodities freely and employees (Solanke, 2011). These sections help illustrate which domain the law aims to fight. In addition, to which persons it is covering. The government’s failure of government to implement this will greatly doom the object of the Act itself. The final variable is the strategy variable. This answers the question how equality would be attained. In practice the answer to this phenomenon also involves variables such as value, characteristics and domain. Several approaches can be used in answering this question: characteristic-insensitive, characteristic-sensitive, characteristic-separating and characteristic-transcending. Under characteristic-ignorant approaches, the principle of equality mandates us to be blind to a characteristic where it is right to be insensitive to difference. This bears the classic stance of liberalism (Bamforth et al., 2008). It dismisses direct discrimination unreservedly. However, equality might equally require us to take into consideration such characteristics under characteristic-accommodative strategies through toleration or a more positive valuation of the characteristic. In this case, the Act purports to create an inclusion of the characteristics. Failure to implement these provisions would make the Act bias against the protected individuals. As a consequence, it may be important to note that, the failure of government to implement collectively these articles and in its present form would constitute a massive loophole. This will undermine the proper preservation and practice of equal commercial practice within the focused groups of employee stand denying them a right of equal employment unless checked properly especially within employees. The presence of the three sections from the implementation would serve greatly against the increasing calls for employees. They also offer the worker much needed insights on ways through which they can seek redress for perceived unnatural tendencies by management. It empowers them to know their rights under the employment Act (Doyle, 2010). Question 2: Case Study 1 In the case in point, it all depends on whether Dave had been treated in a different way when he visited the bar for a drink. The Equality Act of 2010 defines discrimination as the act of treating a person worse than all other people simply because of some form or personality or character. The protected characteristics are also protected by the Equality Act. This means that if a person falls under the group of protected characteristics, he or she is protected by the constitution. Usually, it is not a matter of whether you belong or possess any of the protected characteristics or not, to be qualified for a case against discrimination. In any case, you feel that a person has discriminated against you because he or she thinks you fall under any of the protected characteristics like being gay or being disabled; that is liable for a case against the culprit for discrimination. The Act also protects the people who have family members or co-workers, and even friends with protected characteristics and have been less favorably treated for that reason. For instance, if you are being discriminated against because you have a lesbian daughter, then the Equality Act 2010 protects you. The characteristics, which are protected by the Equality Act 2010, are just as highlighted above; they include disability, age, race, gender identity, sex, religion or belief, and finally sexual orientation. In any case, a person has any or even more than one of these characteristics which are protected and they get treated as everyone else, it will be against the law since if the treatment will put them at a disadvantage. The Equality Act of 2010 on any single day covers everyone at work, when using services like hotels, shops, gyms, hospitals, as well as other free services. Hence, in light of the above legislation protection, Dave’s case has elements of discrimination owing to the fact that he was treated differently. In Dave’s case, he has been discriminated by association. Discrimination of association means being in a situation whereby a person experiences discrimination simply because of the fact that he or she shows the characteristics seen in other people; these are the people with which the victim of discrimination has been associated. For instance, Dave’s case is analogous to a case where a person is dismissed form work because he or she is married to a person or individual who has certain religious beliefs; even when the employee in question shares in none of the religious beliefs. Additionally, Dave has undergone through discrimination by perception. This means that he has been discriminated against simply because he is perceived, though wrongly, of being gay. He was treated less favorably because the perpetrator of the crime thought he is gay; because of the clothes he had on when he got into the bar. In Coleman v Attridge Law and another of 2008, there was a case of discrimination1. In the case, Coleman, who was the claimant, had been treated less favorable simply because her son was disabled. Rightly so, she had been discriminated against based on the disability of her son. Coleman was not disabled and, therefore, did not deserve such treatment; and neither did her son. With reference from the European Justice Court, it was held by the tribunal that it was not in any way necessary that an employee or a claimant be disabled in order to file a case for discrimination on the basis of disability2. Following that decision by the courts, the labor government then led the way to extend further, the prohibition against perceptive and associative direct discrimination as well as harassment to other areas and strands of situations where law was not yet applicable. As a result of the incorporation of the extra sections into law, today Dave can be able to file a case against the people who discriminated against him based on the perception that he is of a certain protected characteristic. This is a case of discrimination based on perception, and it is very much punishable by the laws of the land. Case Study 2: Judith has been a diligent employee and has been doing her work very well. However, based on the fact that she has developed a medical condition which impairs her ability to do her work as before, her employer wants to dismiss her from work. Judith is liable to file a case against her employers on the basis of discrimination based on her newly developed disability to do her work well. Additionally, this case will only be valid if and only if she gets fired. Judith has let her employers know of her condition, and if anything, they are supposed to support her and pay her medical bills because their journalism methods have led her to develop the medical condition which now impairs her work. Judith’s case could be prosecuted on the basis of indirect discrimination. Based on this, the employer is discriminating against people with her kind of illness or medical condition. This means that any other person with the kind of illness or medical condition Judith has will not be able to work at the Journalism firm3. The other form of discrimination protection Judith has against her employers is that of the employer’s duty to make adjustments. Everyone knows that Judith has developed a medical condition or gotten ill based on the fact that she has been working diligently and tirelessly; following her employers ways and methods of working. Now that she is unable to work as her employers want, she is facing dismissal. It is required by law that employers provide alternative ways of working in order to accommodate all kinds of employees in the company or business. Organizations, which do not comply with this requirement like Judith’s organization, face legal action because it is very wrong by law, to dismiss a person because they cannot meet the requirements of the business or organization anymore. Normally, the organization should put in place measures of dealing with cases such as Judith’s. For example, finding ways of seeking medical attention for their employees, and even offering to pay for rehabilitation or therapy for the employee to get better. Failure to do that brings up a court case. This case would only be valid in the period when Judith is ill; without that evidence, the case does not stand a chance of going through. The doctor can corroborate Judith’s claim of illness as the reason for the laxity in performance. This is covered with the section 20 of the Equality Act 2010. Case Study 3 In this case, Judith cannot get a job because the prerequisites for the job requires that any potential employees must speak fluent welsh and also be from the same place because most of the residents are from the same locality. The job also requires a person to have a deep understanding of the Welsh culture. While it is important to have knowledge of the culture in a location a person is employed, the demands of Helen’s potential employers are utterly discriminatory of anyone, not from Wales. If Helen is a qualified social worker or has been working in care homes in England, the ability to speak the Welsh language or even have an understanding of the welsh culture would be immaterial since learning of a language does not take long; and a person can always learn about a new culture or a different culture. The employer may only be exempted from prosecution of the type of job has cultural sensitivities in it; in this case, there are no sensitiveness at all. Unless there is proof that the people in the care home for the elderly require welsh care, the job advertisement seems to be discriminating on the English men and women. Exceptions can only be given on special occasions where, for instance, the cleaners or helpers in a men’s lavatory should be men, and for the women, there be women cleaners. Under schedule 9 for work exceptions of the Equality Act, the employers have the burden of proving beyond any reasonable doubt that the kinds of businesses they run require such kind of exceptions from the Equality Act 2010. If this is not possible in any way, then the employer is guilty of discrimination based on race, or nationality. Additionally, a person like Helen has to provide evidence in a court of law showing that she was treated differently from the other applicants to the job in consideration for the job opening. This is what the 136th section of the Equality Act talks about. It is titled “The Burden of Proof.” Under it, an example is given of a Chinese man who applied for a promotion at his place of work but was not given an interview. On the sidelines, other fellow workers are reported to have had interviews. The Chinese man then followed up to seek legal justice on the basis of racial discrimination at the place of work. He was treated differently as compared to the other workers. It seems he was not given the constitutional right to the same treatment of all potential candidates in a promotion at the place of work. He brought evidence to ratify his claim, and it was then upon the employer to disapprove him or provide evidence to the contrary; perhaps come with witnesses to support him on the matter. Discrimination based on ethnicity, or race, or color, is covered by The Equality Act of the year 2010. Any person found to be treating people less appropriately is liable for legal charges on the basis of racial discrimination. Rightly so, this legislation has helped resolve many law suits in the courts of law in the United Kingdom. The law is the truth; it sets people free and locks up wrong doers. Reference Bamforth, N., Malik, M. & O'Cinneide, C., 2008. Discrimination Law: Theory and Context, Text and Materials (Socio-legal) (Socio-legal Series). Sweet & Maxwell. Bourne, C. & Whitmore, J., 1996. Anti-discrimination Law. Sweet & Maxwell. Doyle, B., 2010. Equality and Discrimination: The New Law. Jordan Publishing Limited. Dworkin, R., 2002. Sovereign Virtue: The Theory and Practice of Equality. Harvard University Press. Equality and Human Rights Commission, 2011. Employment Statutory Code of Practice. Equality and Human Rights Commission. Koppelman, A., 1998. Antidiscrimination Law and Social Equality. Yale University Press. Lewis, H.S. & Norman, E.J., 2004. Employment Discrimination Law And Practice. West Group. Rivers, J., 2012. Promoting Religious Equality. Oxford Journal of Law and Religion, pp.76-82. Solanke, I., 2011. Making Anti-Racial Discrimination Law. Routledge. Wadham, J., Robinson, A., Ruebain, D. & Uppal, S., 2010. Blackstone's Guide to The Equality Act 2010. Oxford University Press. www.legislation.gov.uk, 2010. Equality Act 2010. [Online] Available at: HYPERLINK "http://www.legislation.gov.uk/ukpga/2010/15/section/78" http://www.legislation.gov.uk/ukpga/2010/15/section/78 [Accessed 10 May 2012]. Read More