Influences of EU Laws on UK Laws - Essay Example

? Influences of EU Laws on UK Laws Module Module Number: Academic Year: Seminar Essay Question: Using relevant legislation and case law, critically analyse the influence of EU law in the development of discrimination law in the UK. Student Number: The influence of EU laws on UK anti-discrimination law The United Kingdom as one of the Member States of the European Union must implement the EU law and interpret the domestic with respect to the letter and spirit of the international legal regime. The superiority of the EU law over domestic UK laws enables various EU Directives to have a direct impact on the English legal system. EU directives normally prompt the UK to enact domestic laws that allow for the smooth implementation. The requirement that the UK must comply with various articles of the EU treaty and directives has basically placed the country in a position to operate in line with the EU law whether or not a domestic legislation to that effect is in place. The enactment of the Equality Act 2010, which brings together UK’s anti-discrimination laws, was particularly influenced by EU law. This paper critically examines the influences of the EU law on the UK’s anti-discrimination laws. Article 141 of the Treaty of Rome, providing for equal pay for employees undertaking a like job has also influenced the English domestic law1. EU Directives and the EU Treaty continue to play a pivotal role in the implementation of the Equality Act 2010. The Equality Act 2010 The Equality Act 2010 consists of Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 19952. The statute consists of other statutory structures outlawing discrimination in workplaces on the basis of religion or belief, age and sexual orientation. The recent enactment of the Act was influenced by the EU Directives on Equal Treatment. The Act requires fair treatment in employment, whether it is a public or private organization irrespective of age, physical ability, gender, marital status, ethnicity, sex, and sexual orientation3. The legislation also envisages special privileges for expectant women and mothers, since their condition is classified as a protected characteristic. Moreover, the law requires employers and organizations that provide services to effect adequate adjustments at their premises to allow the disabled persons an unfettered access and equal benefits as the not-disabled4. Despite its overarching role in ensuring equality in the UK as captured in the EU law, the Act permits the barring of transsexuals from occupations that require gender-specific qualities for purposes of realizing a valid objective. Equal Pay Act 1970 Equal Pay Act was the first anti-discrimination law in Great Britain. Whereas, equal pay is an important part of EU and local anti-discrimination law, its enactment was not influenced by the EU5. The debate as whether equal pay across gender constitutes discrimination may be the result of a lack of a clear pattern by the international influences on this particular issue, and partly due to the joint codification of equal pay and sex discrimination legislation in the English law6. Anyhow, discrimination law both at the EU level and locally has shaped equal pay legislation where ‘genuine material difference’ exists (Equal Pay Act section 1(3)) or where the employers create indirectly biased payment systems. Whereas equal pay across gender and sex discrimination laws were codified separately, unequal pay based on ethnicity and race discrimination can be effectively handled under the Race Relations Act 19767. In light of this, the Equal Pay Act 1970 could be an original body of law whose creation was informed by local concerns because at its enactment, the UK had not yet joined the European Commission (EC) membership8. The subsequent inclusion of the UK in the EC in 1973 arguably served to strengthen the implementation of the law since a similar provision is present in the Treaty of Rome of 1957. Nonetheless, the is no denying that the UK’s lawmakers may have pre-empted the letter and spirit of the current article 141 of the Treaty, by enacting the Equal Pay Act 1970, three years before it joined Commission. The EU law’s influence would later arise in a more direct manner, however. Contrary to the aspirations of the then occupant of Downing Street, parliament was forced to repeal the 1970 law to enable it comply with EC law9. Prior to the amendment, the law provided two avenues to equal pay; occupation where a male and female employee did ‘like work’; that is, work that was identical or work that involved too insignificant dissimilarities. The law later recognized the impact of specialized job evaluation groups, by stating that jobs that these groups had given the same rank constituted ‘like work across gender. In light of this, the UK was prompted to act in line with the European Court of Justice’s decision seeking to correct the anomaly of a missing mandatory job evaluation system to establish which jobs would fall in the same rank10. The landmark decision in the case of EC Commission v UK [1983] ECR 3431 also influenced the 1983 move by Britain 1983, to insert work of equal value as the third test for achieving equal pay. The Equality Act 2010 does uphold the key provisions of equal pay as contained in the 1970 legislation, the EU Directives on the subject. Sex Discrimination Act 1975 Sex discrimination is codified in the Sex Discrimination Act 1975 (SDA), under the Equality Act 201011. Notably SDA was the second anti-discrimination law to be passed by the UK’s parliament. Although, its crafting was derived from the United States law, significant amendments to the law that followed its enactment have been influenced by the EU law. The very basic tenets of the law remain the same, however12. These are; the definition of ancillary forms of discrimination and the evidentiary threshold for laying a claim. The normal strategy is that damages may be awarded in case of: direct discrimination, indirect discrimination, victimisation and harassment13. It is apparent that claims which involve race discrimination can only be viewed in the context of segregation when the court imposes a liability for discrimination14. In lieu of the SDA, direct discrimination is defined as handling an individual from the vulnerable groups (normally a female) less reasonably than would be the case in the treatment of the another group (men). In light of indirect sexual discrimination, the EU law has over the years expanded the definition due to the impacts of the employers’ defences on the EU law during their justification for alleged discriminatory acts brought by their employees15. In typical consolidated English law case of Pearce v Mayfield Secondary School Governing Body and Advocate General for Scotland v MacDonald [2003] UKHL 34; [2003] IRLR 512, the first and second claimants alleged discrimination based on sexuality and sex on their person in stark violation of the SDA16. The court dismissed the claims arguing that the Sex Discrimination Act 1975 is applicable on discrimination based on sex or gender alone. The bare interpretation of the Act meant the comparators were homosexuals of different sex; therefore, either of them would validly claim the liability of their employers if they belonged to the same sex and received different treatment. Pearce lost the case pupils are not agents of the school17. Equal Treatment Amendment Directive 2002/73 Owing to the shallow definition of the SDA in the two examples of case law, the Equal Treatment Amendment Directive 2002/73 basically influenced the broadening of the definition sex discrimination in the UK law18. The amendment of the UK’s SDA thereafter was based on the letter and spirit of the Directive. Since the passing the amendment, the domestic law gives life to the Directive by not only spelling out its purpose, but its effect as well19. The new definition, which came into effect after the 2003 rulings, and which is part of the Equality Act 2010, defines sexual harassment under s. 4A(1) as: engaging a woman in unwanted behaviour because of her sex for a purpose or to achieve certain outcomes; defiling her dignity; disparaging her or creating a hostile environment for her20. Moreover, directing any form of inappropriately spoken, non-verbal or physical behaviour to a woman with an intention and effect; and subjecting a woman to an unfavourable treatment that she would not have faced if she had been submissive or not to the instigator of these advances also constitutes sex discrimination21. In light of the definition of ‘sex discrimination’ in law, it is apparent that its implementation has far reaching implications. It encompasses discrimination against couples who are in marriage and similar relationships22. Previously, those who were unmarried, widows, widowers and divorcees were excluded from protection. In the case of Bick v Royal West of England School for the Deaf [1976] IRLR 326, IT, for example, the court argued that the law was silent on discrimination against an unmarried individual; therefore, any such acts of discrimination did not constitute an illegality. Conversely, the Equal Treatment Directive 76/207, which was later consolidated into the Equal Treatment Amendment Directive, aims to correct this bias on single persons. The Directive extends to discrimination on the basis of family status, a broader definition than previously held marriage and civil unions. Despite the lack of any European Court of Justice Interpretation on the overarching impacts of the Directive, the UK has moved a step higher codify it. The Equality Act 2010 under Section 13 outlaws discrimination based on a protected characteristic such as marital status23. In light of some delays in the passage of legislation by the UK’s parliament, and amendments to various bodies of law that are seen as inconsistent with the overarching, and superior EU law, the country has since 1975 had its domestic laws of sex and sexual discrimination influenced by EU law. Apart from the broadening of the definition of sexual discrimination whose traces are the EU law, the extension of the EU law to the UK came in the deletion of the highest amount on compensation, which was previously hinged on the financial remedies for unfair dismissal24. The ECJ excluded the rule of compensation in the case of Marshall v Southampton and South West Hampshire AHA (no. 2) [1993] ECR I-4367 purely on the grounds of the EU law that the maximum damages ordered by the court as reparation for sexual discrimination were not adequately dissuasive of such practices. The Equality Act 2010 was as partly influenced by the Directive 2006/54, which brought together equal pay and sex discrimination bodies of law together25. The Race Directive 2000/43 The EU’s Race Directive was a ‘belated’ move aimed at clearing the obstacle of race in the whole of Europe. Its enactment came 25 years after the UK had passed the Race Relations Act of 1975. It can be argued therefore, that the mere mention of EU law is a reminder that the enactment of the Race Relations Act 1976 (RRA) did not come as a response to an EU Directive; instead the EU Directive (1000/43) was issued in response to the Act. The EU law was arguably a strategy that was aimed at imposing the good provisions in the law upon other EU Member States that were still lagging behind on matters of race26. The Race Directive arguably has traces of the UK domestic law. One key challenge is that the EU law impacts only a section of the more overarching RRA. The Directive specifically envisages one’s race and ethnicity but leaves out one’s colour and country of origin factors because the RRA was repealed by a legal regulation premised upon the European Communities Act 1972 and not through a normal parliamentary process27. The net result is that the two issues that the Directive does not address remain intact even in the wake of the repeals to the Act after the issuing of the Directive. This has resulted in the realization of two definitions of what constituted indirect discrimination; the original definition applied to skin colour and one’s nationality, while the new version based on racial grounds. The enactment of the Equality Act 2010, however, has since then eliminated the inconsistency through clearer provisions28. The recent “non-discrimination” strategy of UK’s Tesco Inc. to recruit Polish employees to work at its local outlets has raised an interesting perspective of the local and EU anti-discrimination laws on employment. Next Plc has also come under similar criticisms for recruiting 800 Polish employees to provide services in its South Elmsall store since 201229. Although these firms seem and may claim non-discriminatory practices based on nationality, they have opted for the foreigners because their hiring circumvents the Agency Workers Regulations and fees to that effect. The end result has been that the employment of the Poles for over three months makes the temps remarkably less costly than the local employees. Perhaps the ECJ would be better placed to give direction on the issue30. Disability discrimination is an important aspect of a current day UK discrimination law. Despite the drafting of the Disability Discrimination Act 1995 (DDA) based on the framework of the SDA and the RRA, the EU law has influenced it in several respects. It is arguable that that since its enactment, the influence of EU law has led to its repeal on a number of occasions to achieve the standard framework for the current discrimination law31. The Employment Directive 2000/78 Sexual orientation as part of the Employment Directive has been domesticated by the UK. Prior to the 1997 Treaty of Amsterdam, the ECJ was of the opinion that any form of discrimination based on sexual orientation was not part of outlawing sex discrimination32. Nonetheless, the signing of the Treaty equipped the EU with the capacity to issue Directives on the form of discrimination, and tie it to the Employment Law of the Member Countries like the UK. The Directive sought to outlaw direct and indirect discrimination, harassment and victimization in organizations and workplaces. The Directive was then domesticated by the UK law through the Employment Equality (Sexual Orientation) Regulations 2003, SI 2003/166133. On matters to do with discrimination based on religion or belief in Employment settings, the provisions of the Directive 2000 was moved into the English law though the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1662. The four typical values of discrimination were again incorporated into the body of law to ensure successful implementation. In the case of Grainger plc v Nicholson [2010] IRLR 4 (EAT), the court was faced with the interpretation of the level of legal safeguards which protect against discrimination based on religion or belief. The case was about Mr Nicholson’s belief about global warming, which had resulted in his handpicking by his employer, Grainger plc. to face the axe. The court held that the claimant’s conviction that global warming exists is a belief that is protected by law. His dismissal thereafter, based on this conviction amounted to discrimination based on belief34. In another recent case where EU law reigned over local UK judicial mechanisms was the Eweida v British Airways plc [2010] EWCA Civ 80. The English labour law was at the centre of an industrial dispute between the national carrier and one of their workers over its internal uniform regulations. In the case, the employee alleged discrimination by the British Airways on the basis of religion. In 2008, the claimant refused an out-of-court settlement for damages amounting to ?8,500 and lost the case in an employment tribunal thereafter on the basis that she had flouted internal company policies. The claimant was also found to have made a demeaning remark in reference to a gay workmate. Eweida then opted to file the case at the European Court of Human Rights in September 2012 following the Court of Appeal’s refusal to hear the case. In early 2013, the Court established that her rights under Article 9 of the European Convention on Human Rights had been infringed on and awarded her a total of €32,000 in damages and costs. The Court ruled that British Airways had not acted with fairness in balancing Eweida's religious interests and its uniform policy35. The Employment Directive 2000 forms the basis of and influences the discrimination law based on the age factor. The UK’s Employment Equality (Age) Regulations 2006, SI 2006/1031, was theoretically lifted from the Directive. Regardless of its traces from the EU law, it can be pointed out that one key exception is available36. Direct discrimination based on age may be acceptable when an employer wants certain positions to be filled by persons whose ages fall within certain parameters, however37. This paper has critically explored various influences of the EU law on the UK’s local anti-discrimination laws. Conclusion The British statutory laws and case law have been significantly by EU law. The Equality Act of 2010 is the most recent body of anti-discrimination law safeguarding the interests of the British nationals and by extension EU citizens within the local employment market. The Act integrates numerous, and complex Acts and Regulations into one document for easier interpretation by the local courts. It is notable that most of these Acts like the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995 as well as other key statutory regulations that protect employees from discrimination in the workplace, were either derived from the EU law or have been amended in one way or another to be consistent with various EU Equal Treatment Directives. 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