Employment Discrimination - Assignment Example

?Introduction This article analysis different cases concerning employment discrimination based on various personal attitudes and beliefs. The cases presented within this article fall under the jurisdiction of United Kingdom labour and human right laws. Two legal articles under the British constitution were considered by the European Court of Human Rights; article 9 and 14. These articles present different provisions and protections to employees regarding discrimination in working places. Article nine states two major provisions as highlighted below: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance” (Council of Europe, 2013). “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others” (Council of Europe, 2013). Article 14 on the other hand also provides different aspects seeking to provide protection to individuals who might suffer from personal discrimination, either directly or indirectly within the working environment. This article, however, works in accordance to the provisions of article 9. The provision of this article states as follows. “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (Council of Europe, 2013). The British legal system analysed the issues raised within these cases and delivered its judgements. The applicants, however, sought further redress of the issues within the European Court of Human Rights, following dissatisfaction with decisions made within the British courts (Tomschat 2009). The court delivered different decisions on the issues raised by the applicants within each case. These decisions delivered by the European Court of Human Rights could have various implications on the employment context in future. 1st applicant The applicant had been working with British airways for 5years before the introduction of new uniform regulations, which created controversies with her religion. The applicant appeared to fail to conceal the religious symbol displayed, prompting the company to take necessary action. Following the laid down procedures, the company decided to terminate the services of the applicant indefinitely, without pay. The condition set upon the employee was that she would be reinstated when ready to comply with the prevailing regulations. Following numerous consultations, with relevant stakeholders, the company reviewed the regulations and the perceived religious symbol became permitted within specified working areas. The applicant was reinstated into her employment, however, the pending dues, accrued during suspension were denied to the employee. This prompted the filing of legal complaint against the company for discriminative treatment, and breach of article 9. The applicant cited hindrance of the freedom to manifest her religion. The employment tribunal, however, dismissed the claims for direct discrimination on the ground that, the applicant failed to raise the issues of discrimination when the regulation was introduced. The failure by the applicant to present evidence of other individuals complaining of similar discrimination became the ground for dismissal at the Employment Appeal Tribunal. The appellate body dismissed the appeal for indirect discrimination as the applicant never proved of instances where other persons professing similar religious beliefs complained of discrimination from the company’s regulations. This action might have been difficult because the regulation had been introduced while the applicant was still employed, and could have been the first individual to suffer discrimination under these new regulations. Further appeals into the court of appeal were dismissed on lack of factual evidence showing discrimination within the company. The court of appeal further cleared the company from any wrongful action based on the information supplied by the compalainant. For several years which the regulations had been in place, many practicing Christians, including the applicant, worked for the company without complaining about issues raised by the regulations. This court held that the manifestation of religious beliefs presented by the applicant were personal and not held by majority of the people professing the faith. The court failed to find any interference with the right to manifest religious beliefs, because the applicant had been offered employment into the company despite her religion. The company was therefore, deemed to be free from discrimination. The European Court of Human Rights however, made decision which contradicted with the British courts. The court found admissibility in the dismissal of the applicant from employment for failing to conceal a religious symbol. According to the European decision this amounted to discrimination for failing to allow the individual, freedom to manifest her religious beliefs. The symbol amounted to manifestation of religious belief and the individual should have been protected by article 9. Following this decision, the European court further awarded the applicant €2,000 as non-pecuniary damage and €30000 in litigation cost reimbursements In employment context the European decision presents several implications. The handling of discrimination cases within the jurisdiction of British law occurs in accordance with prevailing case-law. The first applicant’s case continues to be dismissed through the British courts because available evidence does not clearly indicate presence of direct or indirect discrimination. The availability of evidence showing discrimination, therefore, becomes essential in ensuring the companies protect themselves from lawsuits resulting from discrimination (Goodman and Foote 2011). Applicant must provide evidence of discrimination, and precedent to similar events when seeking justice from British courts regarding discrimination within workplaces. Individuals seeking redress from discrimination activities within British legal system should therefore, present substantial evidence to prove discrimination claims. Within the employment context, another implication of the European judgement is that, the European court considers the presence of breach of legal parameters when establishing discrimination in workplaces. The European court considered various elements, overlooked by the British courts. While evidence might not be present to indicate discrimination, employees remain protected by various constitutional acts criminalising discrimination. The European Court of Human Rights considered the prequalification of the applicant into protection by article 9. Since the actions of the applicant were bound to receive protection from article 9, the European Court found discrimination present and consequently failed to further indulge article 14. With evidence showing breach of article 9, the court concluded that, indeed, the applicant suffered discrimination from the employer. There remains a need to strike a balance when establishing regulations, which might affect the freedom of other people in expressing themselves (Paludi and DeSouza 2011). The fundamental human rights must always be considered when introducing changes within the working environment. It remains important to consider the possible implications of the desired changes into people professing different religious beliefs. The various changes which companies introduce into their systems, should maintain a balance of different people’s beliefs to eliminate instances of discrimination upon certain groups. While the British system might require evidential proof, analysis of facts in different jurisdiction could prove discrimination in working places. Companies having international presence, like British airways, should therefore consider various regulations outside British system. Consideration of different provisions from various jurisdictions could ensure formulation of policies conforming to different countries and regions. Employees working within these companies could seek remedial action based on different provisions within different regions like the case of this applicant. While the British system failed to establish presence of religious discrimination, the European Court of Human Rights ascertained presence of discrimination, through using different analytical method. The applicant sought European assistance because the company and county’s system fell within the jurisdiction of European system. Employers should therefore, establish the various methods, for ascertaining discrimination, utilised within different jurisdictions. 2nd applicant The second applicant worked as a nurse for about seventeen years prior to occurrence of the issue under discussion. Since her confirmation, she had worn a cross on a chain around her neck. The hospital, however, had regulations regarding the amount of jewellery an individual could wear while working. Staff members were required to raise issues with respective managers regarding any clothing outside the jurisdiction of the uniforms, which they might wear. The applicant sought authority to wear the cross but this was refused on grounds of health concerns. In consideration of the applicant’s request, the hospital moved her into a non-nursing post to carter for her desires. The post however ceased to exist years later prompting the applicant to seek legal action for violation of her fundamental rights. The Employment tribunal found no evidence of either direct or indirect discrimination of the employee from the employer. The application for direct discrimination was dismissed on basis of refusal arising from health matters and not religious concerns; hence no evidence of religious discrimination. Regarding indirect discrimination application, disadvantage was only was only found to have occurred on the e applicant. There lacked evidence of other employees regarding similar discrimination complains. The applicant failed to seek further legal action because of the previous case presented by Ms Eweida’s case (1st applicant), as the appeal would not succeed in higher courts based on this ruling. The government proposed to the European Court to find the application inadmissible because the applicant failed to exhaust available local options for seeking remedy. The though the applicant failed to exhaust existing domestic methods of seeking remedy, the reasons presented indicated that the case would be precedence by 1st applicant’s case; hence no meaningful judgement might be received. Having considered the judgement delivered regarding the 1st applicant, the second applicant failed to appeal and opted to head for the convention. Laws governing the convention, however, required applicants to exhaust domestic channels completely before presenting application into the convention. The concerns raised by the hospital regarding permission to dress in particular manner, were health and safety issues, and not religious issues. The court failed to find any acts of discrimination under article 9 or 14 within the case of 2nd applicant. Discrimination actions could occur under circumstances where employees are refused opportunity to manifest their religious beliefs. When this opportunity is presented to an employee, and the employee refuses, such instances cannot constitute religious discrimination. The second applicant required to manifest their faith through wearing a cross on their neck. Though the hospital had regulations regarding jewellery and other related items, the employee was offered the opportunity to wear it secured to the lanyard holding her identity badge. The employee refused and was consequently moved to a department where the cross would present limited health concerns. The company showed significant concern for the issues raised by the employee regarding her desire to wear a cross. The hospital did pursue numerous channels seeking to ensure the employee could always have her cross while at work, though the employee refused to accept the suggestions. In avoiding instances of discrimination, it becomes essential for employees and employers to cooperate in creating a conducive working environment free of discrimination acts (Staver 2000). Employers should always be concerned about discrimination issues raised by employees and seek to formulate policies conforming to the issues. The formulated methods, however, should be acceptable and containing no elements of discrimination. 3rd applicant This applicant held religious beliefs that marriages were unions between two individuals of opposite sex. The civil society, however, continued to propagate same-sex union ceremonies through registration officers. The applicant worked under this department, and felt that conducting such unions infringed on her fundamental beliefs and religious rights. The applicant refused to perform civil partnerships between same-sex couples, which caused rota difficulties within the authority, and consequential victimisation of homosexual colleagues. The Employment Tribunal found the authority to have infringed on the rights of the applicant, through placing greater value to homosexual rights than those of the applicant. Upon appeal, however, this decision was reversed as the authority had pledged to deliver non-discriminative services to the public. The applicant’s refusal to undertake civil partnerships between homosexuals surmounted to the authority’s breach of the rights of homosexuals. Though the court appears to find substantial evidence of discriminatory actions, these become overruled by the employer in question. The legal system appears to give public entities authority to change employment terms whenever necessary. Within the public sector, much importance appears to be attached to the rights of the people seeking services over employee rights. Though substantial evidence exists showing violation of fundamental employee rights, the majority overrule minority. The employment tribunal found substantial evidence of breach in employee right. The appeal by the authority, however, saw the decision overturned in favour of the authority. The authority raised concerns over the numerous homosexuals who had their rights for non-discriminative services breached. The court ruled in a democratic manner; in favour of majority, rather than legal analysis of the constitutional articles in question. Discrimination actions in workplaces significantly vary depending on the employer; whether public or private employers. Public entities are accorded the freedom of delivering services to public, while ensuring the delivery remains non-discriminative (Goodman and Foote 2011). While the process might be discriminative, to those undertaking it, absence of discrimination to recipients ascertains non-discrimination. The decisions made by the European court of human Rights could imply double standards for adjudicating employee discrimination between public and private employers. The allowance of a wider margin of appreciation within public employers could potentially enhance employee discrimination within the public sector. The image of the public sector could also be tainted by the claims of discrimination, where employee cannot get just treatment from the courts. 4th applicant The applicant could be identified as a counsellor who had deep concerns regarding same sex relationships. His religious values significantly contributed to his difficulties in handling cases of same sex counselling. The religious beliefs held by the counsellor were believed to affect his capacity to deliver sound and relevant counselling. The organisation he worked for pledged delivery of non-discriminative services to its clients. The incapacity by the employee to handle certain clients could have contradicted this organisational provision. Following continued engagement with the employee, the company concluded that, the services delivered by the applicant could become compromised when faced with homosexual clients. The employer, consequently, dismissed the employee on basis of incapacity to deliver services meeting the company’s standards and regulations. The European Court of human Rights also concluded that the applicant remained fully aware of the company’s regulations and requirements in psycho-sexual counselling. The applicant failed to conform to these provisions voluntarily because of his religious believes. The failure to accept responsibilities connected to homosexual counselling constituted breach of company regulations of service delivery charter. The actions undertaken by the company and the courts, therefore, could not be regarded as violating articles 9 or 14. The company acted to strike a balance in manifestation of individual rights and security of rights of other individuals. The company operated on a principle of equal opportunities, therefore, filtering of clients for the applicant could have surmounted into overall violation of homosexual rights. Within the employment context, this decision could be regarded as placing emphasis on the rights of clients. The companies have strict concern for the client rights, which supersedes that of employee rights. Following the decision delivered regarding the 4th applicant, it becomes clear that faced with contradicting stakeholder rights, the customers’ right supersede those of employees. This decision indicates that the company’s public appearance remains more valuable when compared to the internal elements building the public image (Darity and Mason 1998). This implies that decisions made by companies regarding operations, immensely depend on the desired appearance of the company. Relate opted to dismiss the applicant, despite the immense training the company had offered the applicant, to maintain an attractive appearance to the outsiders. Refusal by employees to accept changes in their terms of employment, considering their cultural believes, cannot justify the presence of discriminatory actions. The provisions of article 14 alone cannot substantiate the presence of discriminatory actions. Decisions regarding presence or absence of discrimination require substantial evidence to prove that actions surmount to discrimination. The governing bodies adjudicating discrimination disputes always consider the conditions under which the presumed discrimination occurred. The prevailing conditions remain fundamental in ascertaining discriminatory actions within workplaces. While individuals might feel as being discriminated by company regulations, legal systems never consider emotional situations of individuals. The legal assessment of discrimination, solely considers the factual information presented by the individuals involved in the law-suit. References Council of Europe. The European Convention on Human Rights, 2013. [Accessed April 22, 2013] . Darity, William, and Patrick Mason. "Evidence on Discrimination in Employment: Codes of Color, Codes of Gender." Journal of Economic Perspectives, 1998: 63-90. Goodman, Jane, and William E. Foote. Evaluation for Workplace Discrimination and Harassment. Oxford: Oxford University Press, 2011. Paludi, Michele Antoinette, and Eros R. DeSouza. Praeger Handbook on Understanding and Preventing Workplace Discrimination . Santa Barbara: Greenwood Publishing group, 2011. Staver, Mathew D. Religious Rights in the Workplace. 2000. [Accessed April 22, 2013] http://www.lc.org/resources/workplace.htm Tomschat, Christian. The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions. Berlin: Springer, 2009. Read More