An Overview Of The Law - Essay Example

An Overview of the Law The main purpose of the piece of legislation is to integrate the complex and disparate laws, upon which anti-discrimination efforts of the twentieth-century Britain were anchored. The laws that were incorporated in the Equality Act 2010 span four decades: they encompass the Disability Discrimination Act 1995, the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Equal Pay Act 1970 among other statutes. The Act also covers three core statutory structures protecting favouritism in employment on basis of age, spiritual allegiance or faith, and sexual orientation (John et al. 2010, pp9-16). This legislation draws from the four integral Equal Treatment Directives advocated by the European Commission. The Equality Act 2010 is more of a domestication of the EU directives in the United Kingdom. The law seeks fair treatment in recruitment programs carried out by government and the private sector, by diffusing the notions based on discriminatory factors such as age, gender, marital status, and civil union, ethnicity, spirituality or faith, gender, and sexual orientation (Steele 2010, pp264-265). On gender issues, there are particular safeguards for expectant women. Nonetheless, the Act disbars transsexual individuals from being incorporated in gender-specific programs if, by so doing, it would be a fair approach to realizing a legitimate objective. The disabled are also taken care of under the piece of legislation: for instance, organizations are obligated to make appropriate adjustments to the employment area, in order to accommodate the disabled in terms of the easy movement of the group (Griffith 2010, pp732-733). In light of these initiatives, the Equality Act 2010 is not a new legislation; rather, it seeks to strengthen the already existing non-discrimination legal structures in the country. Question #1 Impacts of government’s failure to implement the Act Even though, the Equality Act was crafted based the need to transform Great Britain into a society without discrimination, the lukewarm government response to the implementation of the legislation is likely to hinder the effort and spirit which pioneered its formation (Steele 2010, pp265-269). As at now, the law, to some extent, has been rendered ineffectual following the admission by the national government that only some sections of the statute would be put into effect when it was enacted in effect in 2010. The failure by the government to implement the legislation in totality undermines every assurance coalition officers ever gave rooting the philosophy of a non-discriminatory Britain. As intended, sections 71, 77 and 78 of the Act would have prompted big for-profit organizations to ascertain whether they have, within their jurisdiction, the discrepancies of pay across gender as witnessed in the country, before 1970 (John et al. 2010, pp21-36). The law had clear provisions that would eliminate pay secrecy, which were and may still be cited by the organizations to conceal discriminatory practices targeted at women regarding remuneration issues (Steele 2010, pp264-274). The government’s suspension of some sections of the law from implementation, arguably to facilitate a review of the numerous clauses endorsed by legislature early in the second quarter of 2010 is not only suspect but a trigger for the continuation of discriminatory practices in the country. According to Steele (2010, p270), pressure groups and rights organizations, as well as non-governmental organizations indicate that refusing the implementation of the entire law was a clear pointer to the failure on the part of government to commit itself to a fair society. They argue that back-pedalling on the legal provision for multinationals and big organizations to reveal and act on any disparities in remuneration between feminine and masculine workers, negates the letter and spirit of a liberal and fair society. Additionally, the failure carry out gender pay appraisals is tantamount to sanctioning the widening of the gender pay divide. Although, the statute is not flawless, considering the fact that the drafters may have overlooked the need to address the socio-economic obligation of public bodies, and income inequality within an organization, its limited implementation is not an act of good faith. Lack of reprieve for vulnerable populations The government’s failure to implement the entire legislation is clear evidence that setting up a more fair society is not a main concern of the coalition. Furthermore, adjunct to anxiety over narrowing the remuneration gap, increasing worries about a plan by the executive arm of the government to assess the system for groups that may be vulnerable to double discrimination heightens (Pritam 2011, pp14-15). Communities such as black women, for example, will likely suffer the risk of more discrimination. The group is likely to experience more difficulty defending themselves from the excesses of a rogue system buoyed by the old constitutional order under which workplace discrimination against race and female gender was the order of the day. The suspension of positive action provision that would permit companies to better tackle the problem of under-representation of communities having special characteristics has also been a retrogressive step, especially in the wake of increasing cases of unemployment and redundancies heightened by tough economic times. The watering down of the provisions of the law at a time the country faces dipping economic fortunes erodes what little legal safeguards enjoyed by the vulnerable in society, who have suffered historical injustices at the hands of the mainstream population. According to Steele (2010, p264), the Act was the most comprehensive and effective anti-discrimination legislation ever adopted by the legislature since 1950s. But John et al. (2010, pp49-87) indicate that even it was implemented in its entirety the piece of legislation would not bring any big impact. That it is simply an anthology of discrimination acts, whose implementation will surely last decades. Nonetheless, the biggest transformation brought about by the Act would revolve around securing the disabled a safe haven that is free from cases of inaccessibility; and the incomplete outlaw of comprehensive pre-employment interrogations on health-related issues (Griffith 2010, pp732-733). This implies employers will be acting within the law if they asked simple questions relative to the particular job description or where the issues are vital to find out whether the candidate will be in a position to execute essential functions. Conversely, this apparently amounts to an unclear section in the piece of legislation and may be exploited by keen employers to continue discriminating against the disabled on grounds that their health condition does not allow them to effectively discharge certain functions. Although, the clauses on equal pay in the piece of legislation adopted in late 2010 reflect the structures in the Equal Pay Act, the partial implementation of the legislation hampered the newly clarified pay protection structures from being regarded legal. For that reason some sections are still being misconstrued to favour men. For instance, section 69(3) of the statute, which captures the fact that the main objective of long-term measures in bridging the inequality gap between men and women in terms of remuneration is often mistaken for a legitimate strategy for the reasons of justifying pay traditions that indirectly favour men. In light of this, temporary pay protection measures brought about with the sole aim of eliminating long-term prejudices in remuneration may be objectively seen as reasonable, if their implementation is a fair way of realizing that objective. The Equality Act 2010 is a landmark piece of legislation that seeks to end cases of discrimination and bring about cross-gender parity on pay in the UK. Although, the government implemented 90% of the Act by late 2010, the chances of proper implementation of the Equality Act 2010 have been dipping every passing day, with the employment industry facing the greatest test in this regard. Employees have continued to bear the brunt of skewed employment regulations. Nevertheless, the Act is not a panacea either, even if it was implemented fully. The statute fails to capture income inequality among members of a specific group. The provision on the socio-economic role of public organizations is conspicuously missing from the document, despite the clamour to address the issue by incorporating it in the law. Government agencies should tackle these discrepancies rigorously and in a sustained manner in order to guarantee the society real equality (Steele 2010, pp271-272). Notably, the provision would have enabled public bodies to think tactically about what should be done to correct socio-economic challenges that have troubled the society for decades, and liaise with partner bodies, and the clear implementation of their services, so as to address inequalities in pay within organizations. Question #2 (a) Gay rights under Equality Act 2010 Although, Gary is not homosexual his habit of dressing in women’s clothing sends out a clearly different message to the public; that he is gay. Regardless, during a weekend visit to his brother’s place, he comes across the unwelcome behaviour of the publican and the eventual discrimination due to his purported sexual orientation. Perhaps unaware of the inclusion of gay rights in the Equality Act 2010, the publican at the joint makes an offensive remark about a purported member of the community, Gary. Despite the fact that Dave attempted to set the record straight by going a great length to make the publican understand that his attitude was retrogressive, the publican maintained that it was “unusual” for men to behave like women (Steele 2010, pp265-271). He discriminated against them (gay) by refusing to serve them and they had to leave the premises. Owing to the fact that the Equality Act 2010 disbars any form of discrimination targeted at anybody due to their sexual orientation, Dave should make a formal complaint against the publican for discriminating against them, even though Gary seems to be unaware of his rights under the legislation. Dave should be aware that the Equality Act streamlines previously existing array of anti-discrimination legislations and eases the work for the public, businesses and employers in understanding and accessing the provisions in one document. From October 2010, the new Act substituted the existing statutes protecting employees from discrimination such as the Employment Equality (Sexual Orientation) Regulations 2003, and legal safeguard for business organizations and services (such as drinking joints, for Dave and Gary), including social facilities such as schools known as the Equality Act (Sexual Orientation) Regulations 2007 (Pritam 2011, p14). It is notable, though, that people such as Gary, continue to enjoy the same amount of safeguards in these situations, despite the fact that he is not fully aware of his rights. The legislation also brings in significant new regulations, such as a common responsibility on public organizations to actively cultivate equality, regardless of sexual orientation. From early 2011, the Act allowed for civil unions in spiritual places, where religious organizations wish to carry out this. Dave should be aware that Sexual Orientation is taken care of under the Act and forms part of the protected characteristics. The issue is listed in the Act and further provided for under section 12. The letter and spirit of section 12 were derived from directive 2 sub-section 1 of the Employment Equality Regulations 2003 on Sexual Orientation, SI 2003/166. Pritam (2011, pp14-15) indicates the clause defines an individual’s sexual orientation as being towards: individuals of the same sex; people of the opposite sex; or individuals of the same sex as well as of the opposite sex. Dave should know that even before the legislation came to effect courts in the United Kingdom were already recognized the existence of homosexuality in the laws of the country. For instance, English v. Thomas Sanderson Blinds [2008] EWCA Civ 1421, [2009] IRLR 206 is a case in which an individual was insulted for being homosexual. However, the plaintiff was in real sense a heterosexual. The nation’s Court of Appeal issued a verdict offering an interpretation of sexual orientation as not just covering real sexual orientation but also encompassing practices perceived as such. Gary’s dressing in women clothing is definitely a perceived reason for his subscription to the gay community (Pritam 2011, p15). Therefore, should Dave make a formal complaint by bringing charges against the publican for discriminating against his brother and taunting him, the court is likely to rule that under Equality Act 2010, the publican was guilty of discrimination acts; however, he was not mistaken to refer to Gary as Gay, because he dressed as one. The approach adopted in the Maruko v der deutschen Buhmen case C-267/06 [2008] ECR I-01757 was in tandem with the Act. The case sought to get a clear judicial clarification of the term sexual orientation. The court ruled that a man who feels sexual appeal towards both sexes is bisexual. This condition is regardless of whether his previous relationships had been with the opposite sex. Additionally, people who are attracted only to individuals of the opposite sex have a common sexual orientation. And a male individual who experiences attraction only to other males is a gay. A woman who feels sexual attraction only to people of the same sex is a lesbian. Therefore, a gay man and a lesbian have in common a sexual orientation. In this case, Gary is likely to be gay, even if his previous relationships have been with women. Nonetheless, under The Equality Act 2010, it was illegal of the publican to show any direct or veiled discrimination in the rendering of services on the basis of sexual orientation (Griffith 2010, p298). The law, however, does not outlaw harassment. Question 2(b) Judith’s case of disability while in employment The serious problem experienced by Judith with her right arm is likely to have been caused by the rigorous nature of the work of typing. Unfortunately, the condition has worsened to a point where the victim cannot work any longer. The pain has sometimes been so serious that Judith can no longer carry out the usual duties, and worse, she cannot accomplish simple good grooming chores such as applying make-up. Nonetheless, Judith’s condition meets the definition of disability under the Equality Act 2010. The Act defines disability as a physical or psychological impairment that has a significant and long-term negative effect on an individual’s capacity to execute normal day to day chores such as operating a telephone, using public facilities, and reading a publication (Great Britain. 2011). Owing to the wider definition of disability in the Act than was the case under conventional legal structures, Judith’s case is covered by the latest anti-discrimination law. In this case, Judith, and by extension, her employer may be ignorant of the nature of the health condition. It is notable, though, that all staff undergoing disability-related illness absence, or who discover that certain duties cannot be achieved following their disabled health condition, will be taken care of under the Act and associated Codes of Practice (Griffith 2010, pp298-302). The employment statutory code of practice, for instance, provides for the appropriate conduct of an employer when handling a disabled employee. These conditions include allowing the employee (Judith) to be absent during working hours to attend medical assessment or treatment. Conversely, the employer is keen on dismissing her from the job. If the employer makes good the threat of terminating Judith’s employment contract, she will come out victorious in a formal complaint against the employer, for failing act accordingly. This implies that, under the Act, Judith’s employer must try to make appropriate modifications to enable her to continue dedicating her services, rather that contemplating dismissing her from the job on incompetence grounds (Griffith 2010, pp298-302). Examples of reasonable adjustments might be in the form of modifications to the computer hardware she uses, and the workplace setting, adopting part-time working, swapping of duties, redeployment schedules, a revision of reporting hours or granting her a sick leave. These excellent provisions may fail to take foot, at least for now, because Judith’s attempt to reveal the “disability” status to the employer does not carry any weight. She is yet to receive official health documentation regarding her condition for presenting to the employer. Maybe, such official documents could reverse the employer’s opinion on her perceived incompetence. Additionally, Judith’s “disability” makes her eligible for an endowment fund under the programme of 'Access to Work' Scheme (Griffith 2010, pp732-733). The Department of Work and Pensions manages the grant as a way of offering support to disabled individuals to enable them weather work-related challenges occasioned by their disabled condition. All Judith needs is to get in touch with the program coordinators to request for assistance. Under the programme, Judith may benefit from variety of useful help such as assistive equipment, and modifications to workplace environment. In case a beneficiary (Judith) requires special equipment for work, it is the duty of the department to buy the gadget once all the processes have been agreed upon. Owing to the wide range of safeguards enshrined in the piece of legislation, Judith should be aware that the Equality Act 2010 outlaws any form of discrimination against her. Under the law, she satisfies the conditions, because it is more likely that the employer is hell-bent on discriminating against her due to disability, or perceived disability, as she can no longer meet the deadlines (Great Britain. 2011). In this case, Judith’s employer is required under section 20 of the Act, to steer clear of any provision, condition or practice, which hurts the employee when compared to other workmates. Her dismissal, even before a health report is presented goes against the provisions of the Equality Act, which requires the employers to implement appropriate adjustments to conditions that may be disadvantageous to Judith. Question # 2 (c) Helen’s case Although, the wording in the job ad that Helen has spotted in the local newspaper seems to go against the letter and spirit of the Equality Act 2010, on first sight it is legal under the piece of legislation (Davies 2011, 21-42). Positive action during recruitment exercises as enshrined in section 159 of the Act was absolutely preserved by the prospective employer, because, the recruiter lists all the important requirements of the occupation which encompasses knowledge of Welsh culture and proficiency in the Welsh language. The advertiser supported the need to enlist applicants with those qualities, with valid reasons as required by the law. In this case, the brief justification that the job description will involve direct interaction between the new employee and the native residents eliminates the grounds that the recruiter discriminates against the English Helen. Speaking Welsh language and being knowledgeable in the culture becomes an occupational requirement and not discriminatory grounds. Therefore, Helen’s husband is not likely to succeed if he decides to make a formal complaint of discrimination claims against his wife. Under the Equality Act 2010, job description and the qualities of the needed applicants should be clearly written (Griffith 2010, p732). The tasks and the skills that will be required of the individual in employment should also be clearly spelt out, which was the case in the ad. As provided for in the Act, the ad steers clear of any conditions that are not directly connected to the job. A requirement in the ad, for example, that would make it mandatory for the applicants to be drawn from the natives or persons who have spent a longer period of time in New Wales would have contravened the Equality Act 2010. Such condition would openly discriminate against Helen, and other candidates who were not stationed in the region before. Occupational requirement clause According to Davies (2011, p4), it is illegal for a job announcement to state that the candidate must have certain qualities such as gender, ethnicity, language, unless bearing a particular quality is an occupational requirement. In this case, Helen will need the knowledge of the Welsh culture and the language of the community to be able to effectively discharge her duties, which largely involves interactions with the Welsh during care operations. In light of this, should Helen’s husband make a formal complaint, he will not succeed. Although the recruiting organization will shoulder the burden of proof against the allegations of discrimination, the ad carries adequate evidence supporting genuine occupational requirement. The institution can cite the list of the residents who are all Welsh, as the occupational requirement behind their intent to seek employees who are well conversant in the culture and language, to care for the residents. In a nutshell, even though, there is no clear list of circumstances where an occupational requirement is applicable, the benchmark is that the “legal discrimination” must be directly linked to the job. References Davies, A. 2011. Workplace Law Handbook 2011: Employment Law and Human Resources. New York: Workplace Law Group. Great Britain. 2011. Equality Act 2010, Part 15. London: The Stationery Office. Griffith, R. 2010. The Equality Act 2010: further protection against discrimination. British Journal of Midwifery, 18 (11), pp732-733. Griffith, R. 2010. The Equality Act 2010: strengthening legislation. British Journal of Healthcare Management, 16 (6), pp298-302. John et al. 2010. Blackstone's Guide to the Equality Act 2010: Blackstone's Guides. Oxford: Oxford University Press. Pritam, A. 2011. Equality control. Occupational Health, 63(7), pp14-15. Steele, I. 2010. Sex Discrimination and the Material Factor Defence under the Equal Pay Act 1970 and the Equality Act 2010. Industrial Law Journal, 39(3), pp264-274. Read More