The UK Anti-Discrimination Law - Research Paper Example

Anti Discrimination Law Contents Introduction………………………………………………………………………………………………….2 2. Definitions of Discrimination…………………………………………………………………………3 3. U.K. Anti Discrimination Law………………………………………………………………………..5 4. Role of a Comparator……………………………………………………………………………………6 4.1. Showboat Entertainment Centre Ltd v Owens [1984] ICR 65……………….7 4.2. Peake V Automotive Products Ltd. 1978 QB 233……………………………..10 4.3. James v Eastleigh Borough Council [1990] 2 AC 751……………………….10 4.4. Shamoon V Chief Constable of the Royal Ulster Constabulary [2003] IRLR 286………………………………………………………………………………12 References.........................................................................................................................................13 1. Introduction “We hold these truths to be sacred and undeniable, that all men are created equal and independent, that from that equal creation they derive rights inherent and inalienable, among which are the preservation of life, and liberty and the pursuit of happiness”1. Thomas Jefferson (c. 1775) The United Kingdom has been and continues to be a country of migration with a large existence of multiple ethnic communities which is what makes it a multi cultural nation. However such diversity in the composition of its population has also over the years led rise to cases of discrimination on the grounds of race, age, gender, ethnicity among others such as prejudicial treatment of people of different sexual orientation or disabled persons and hence there is a need to implement a robust and effective legal framework that discourages such differential treatment in a bid to protect the basic human rights of its citizens. The significance of protection of human rights in terms of equal rights to one and all and the treatment of all humans with dignity and respect has been recognized by the world community which has enacted several laws to prevent cases of discrimination and punish those who resort to such uncivilized behaviour. These laws seek to ensure and propagate the idea that all humans irrespective of their race, sex, physical disabilities, and preferences be treated equally and with the same degree of respect and dignity enjoyed by their fellow beings. Such opinions have also been voiced by the United Nations in their Charter which states that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty”2. 2. Definitions Discrimination is divided into four distinct categories which includes discrimination on the basis of age, sex, race, disability etc and is further categorized as direct discrimination, indirect discrimination, harassment and victimization. The definition and scope of each of the term is discussed hereunder: Direct Discrimination: This form of discrimination is one of the most common and widely experienced forms of discrimination. It refers to prejudicial or biased treatment of a person or persons whereby the others are treated less favorably on account of one or more of the following grounds: race, religion, gender, age, etc. Direct Discrimination has been defined in the Framework Directives as “where one person is treated less favorably than another is has been or would be treated in a comparable situation on [the grounds of age]3 According to Section 1 (1) of the Race Relations Act 19764: “A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if— (a) on racial grounds he treats that other less favourably than he treats or would treat other persons…” According to Sex Discrimination Act 1975 Section 1 (1)5: “A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if—on the grounds of her sex he treats her less favourably than he treats or would treat a man ...” According to Disability Discrimination Act 1995 Section 3A (1)6: “(1) For the purposes of this Part, a person discriminates against a disabled person if - (a) for a reason which relates to the disabled persons disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified. 3A(5)7: A person directly discriminates against a disabled person if, on the ground of the disabled persons disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.” 3. U.K. Anti Discrimination Law According to a statement made by Rt. Hon Harriet Harman QC MP, House of Commons while introducing the government’s latest report on discrimination law “…There are currently nine major pieces of discrimination legislation, around 100 statutory instruments setting out connected rules and regulations and more than 2,500 pages of guidance and statutory codes of practice…a thicket of legislation and guidance…”8. They are mentioned as follows: The Equal Pay Act 1970 (EqPA) The Sex Discrimination Act 1975 (SDA) The Race Relations Act 1976 (RRA) The Disability Discrimination Act 1995 (DDA) The Employment Equality (Religion or Belief) Regulations 2003 (RB Regs), The Employment Equality (Sexual Orientation) Regulations 2003 (SO Regs) The Employment Equality (Age) Regulations 2006 The Fair Employment and Treatment (Northern Ireland) Order 1998 The Human Rights Act 1998, Article 14 that deals with the Prohibition of Discrimination states that: “The employment of the rights and freedoms set forth in this 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”9 4. Role of Comparator Justice considers that the essence of direct discrimination lies in its comparative nature. Any court or tribunal adjudicating on a direct discrimination case must consider whether the claimant has been treated ‘less favourably’ on the prohibited grounds. This is perhaps one of the most salient aspects of the British legal system which requires all claimants to be treated alike. The requirement of an appropriate comparator is of utmost significance in any case of direct discrimination whereby in order to put forward a legitimate claim of discrimination the claimant is required to prove that except for the characteristic that caused the alleged discriminatory treatment towards the claimant, s/he would not have suffered. According to Sec.5(3) of the Sex Discrimination Act10: “A comparison of the cases of persons of different sex . . . under section 1(1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.” Showboat Entertainment Centre Ltd v Owens [1984] ICR 6511 “... Although one has to compare like with like, in judging whether there has been discrimination you have to compare the treatment actually meted out with the treatment which would have been afforded to a man having all the same characteristics as the complainant except his race or his attitude to race. Only by excluding matters of race can you discover whether the differential treatment was on racial grounds”. In Shamoon V Chief Constable of the Royal Ulster Constabulary [2003] IRLR 286, House of Lords, it was held that: “The applicant chief inspector has not suffered a ‘detriment’ within the meaning of Article 8 (2) (b) of the Sex Discrimination (Northern Ireland) Order, when the right to carry out appraisals was removed from her, because in order to constitute a detriment there must be some physical or economic consequence which is material and substantial12.” This suggests that the role of a comparator is and can be easily over emphasized in such cases. Thus there might be a conflict about the two major roles of the comparator, one being the responsibility to establish the existence of prejudicial or “less favourable” treatment of the appellant and second is to supply an evidence of such a treatment so that it offers a valid ground to prove or dismiss such a claim made. According to Lord Nicholls “When the claim is based on direct discrimination or victimization, in practice tribunals in their decisions normally consider, firstly whether the claimant received less favorable treatment than the appropriate comparator and then secondly, whether the less favorable treatment was on the relevant prescribed ground”. He further stated that “employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was13.” However certain conceptual difficulties may arise on account of the comparator approach for instance it might be difficult to find an actual or a hypothetical comparator to determine whether or was the claimant treated in a less favourable manner. Secondly, the difficulty in finding an actual comparator in direct discrimination cases would give an unfair advantage to the employers who may claim that the hypothetical comparator lacks the necessary attributes and hence such evidence is unsubstantial in proving that such discrimination did take place. Thirdly, the definition of what constitutes ‘discrimination’ or what is the definition of ‘unfair’ is in certain cases vague and misleading particularly so in cases of discrimination on the basis of one’s sex. In Peake V Automotive Products Ltd. 1978 QB 233 the women employees working in the factory were allowed to leave five minutes early as compared to the male employees, citing safety and protecting the interest of the women employees as the main reasons behind such a differential treatment. This policy was challenged by one of the male employees as a case of unlawful discrimination and unfair treatment to the male employees. Thus, although the claim was upheld by the EAT, it was subsequently unanimously dismissed by the Court of Appeal by putting forward an argument that such a differential treatment was afforded to the women employees since it was in the best interest of their safety and is in fact an example of a good administration14. James v Eastleigh Borough Council [1990] 2 AC 75115 Because pensionable age is itself discriminatory it cannot be treated as a relevant circumstance ... It is only by wrongly treating pensionable age as a relevant circumstance under s 5(3) that it is possible to arrive at the conclusion that the provision of facilities on favourable terms to persons of pensionable age does not involve direct discrimination under s 1(1)(a)... On a proper application of s 5(3) the relevant circumstance which was the same here for the purpose of comparing the treatment of the plaintiff and his wife was that they were both aged 61”. Such complexities in basic understanding of the terms differential treatment or deciding upon valid grounds of discrimination further make it difficult to find an appropriate comparator as required by the statute. The apparent preoccupation of the courts of law which insists on relying on formal proof structures for cases of individual incongruent treatment cases further adds to the complexity of finding an actual or hypothetical comparator. Furthermore, the condition for comparator approach, i.e., like for like might and the requirement under the statute to rely on “relevant circumstances” might actually prove to be discriminatory in certain cases since what constitute “relevant circumstances” is a matter of debate, for instance a disabled stenographer and a non disabled stenographer both have the same speed in terms of words per minute. Thus if the employer happens to treat the disabled employee more favourably it would result in discrimination of the non disabled employee. Moreover if at all an actual comparator is found the extent or degree to which similarities in terms of relevant circumstances as required by the law, is to be determined is again debatable. The verdict in discrimination cases as arrived at on the basis of the ‘comparator approach’ is largely dependent on finding the exact similar case except for the particular characteristic on which the case is based. Such cases are heavily dependent on finding an actual or hypothetical comparator rather than the actual prima facie evidence or the existence of a legitimate non discriminatory reason. Thus if an actual comparator is located or an exact similar case exists then the decision is promptly based on such a case, as “inferred” from the judgment drawn upon in that case while in the absence of an actual comparator the judgment would still be made from the circumstances inferred from a somewhat similar case or on the basis of a hypothetical comparator. The cases discussed above bear testimony to the fact that the “comparator approach” threatens to disrupt the basic conventional wisdom that requires a fair analysis of such cases of discrimination on the basis of facts and actual proofs as stated in the case rather than ignoring them to opt for a comparator which may or may not lead to a fair judgment. The basic underlying purpose of this paper thus, lies in the fact that it attempts to look at this approach in an objective manner and analyze other feasible alternatives that defies the need to rely on existing proof structures as opposed to the more prudent approach of basing ones judgment on the actual facts of each individual case. References: McColgan A., (2005). Discrimination Law: Text, Cases and Materials, Hart Publishing, Pp. 40 - 51 Fredman S., Spencer S., (2003). Age as an Equality Issue: Legal and Policy Perspectives, Hart Publishing, Pp. 55 The Equality Bill, (2008). Framework for a Fairer Future, viewed: Jan 7, 2009 from: Discrimination in the Workplace, (2009). Viewed: Jan 7, 2009, from: < http://www.oup.com/uk/orc/bin/9780199284498/painter_chap05.pdf> Universal Declaration of Human Rights (2009), Article 2, viewed: Jan 7, 2009 from: < http://www.un.org/Overview/rights.html> Read More