Complying with the Equality Act 2010 - Case Study Example

MANAGEMENT PROBLEM Employment law of the UK has seen various developments, dating as far back as 1772 when a case relating to slavery was adjudicated, and a decision was passed against it in the case of R V Knowles, ex parte Somersett, to the more recent Equality Act 2010 that lays down guidelines for employers to judge employees on their character and not race, religion, sexuality, and age, in a bid to curb discrimination at work. This is particularly true after the UK employment law is increasingly being influenced by the EU laws. The situation in question, on the surface, revolves around discrimination based on religion, and in order to advise the Chief Executive, the first thing that will need to be established is whether the court will treat the employee in question as an employee under the legal definition of the term. This argument is substantiated by the recent case of Autoclenz Ltd v Belcher (2011) when Lord Clarke held that work must be exchanged with wage and that intentions of parties did not hold as much importance as the ‘reality’ did – making the test an objective one instead of subjective. Moreover, under the Employment Rights Act 1996, a ‘worker’ is somebody who has a contract for employment and personally performs the work, rather than being the owner of a business or organization. The Housing Services Director asked the Jewish employee to remove the hat he wears as a customary sign of his religion, calling it a ‘skullcap’. This can be considered direct as well as indirection discrimination, subject to the tribunal/court’s interpretation of the matter. Direct discrimination is self-explanatory through its name; suggesting discriminatory practice against an employee for characteristics provided under the Equality Act 2010. Although there is no general defense awarded to the defendant in this case, but an exception is the excuse of a genuine requirement of the occupation that the employee be of a certain age/sex/religion. The test to establish this is an objective one, as can be seen in the case of Shamoon v. Chief Constable of the Royal Ulster Constabulary [2001] where the HOL overturned a tribunal decision where it had found gender discrimination. However, the success of this test may be limited since it is a stringent one – a fact supported by the case of Etam plc v Rowan [1989] is when a man was rejected from the working at a clothing store for women. The Chief Executive can argue that wearing of the hat is genuinely harming the business as it is not only giving a negative impression to people important to the business, but other employees are also feeling uncomfortable – an act which limits their output. Indirect discrimination, on the other hand, takes place when a neutral practice would put an employee in a disadvantageous position because of his age/sex/religion in comparison to others. The only defense available to an employer in case of indirect discrimination is if he shows that the practice/statement was mandatory to achieve business goals, and there was no other way of getting the desired results. However, the court may not find any indirect discrimination in this case if the Chief Executive can prove that the hat is not an integral part of Jewish religion, as was held in the case of Eweida v British Airways plc [2010] when the cross that a woman wore was not considered a part of Christian religion. Also, based on facts given in the question, proving direct discrimination by the employee may be easier for him than proving an indirect one. In case the Chief Executive fails to reach a settlement to this problem and the Jewish employee takes it to a tribunal, he can also argue that the work given to him was on discriminatory basis, because there had been previous instances of other employees taking longer to finish it. This can be argued in favor of the employee, where he can furnish statistical data to prove the indirect discrimination, like Frau Weber von Hartz was able to prove in the case of Bilka Kaufhaus GmbH v Karin Weber von Hartz [1986]. In case the Jewish employee’s claim against the company is successful, the tribunal may ask it to pay the victim damages, if it is just and equitable, for causing personal injury which was a result of a tort, authority for which can be found in the case of Sheriff v Klyne Tugs (Lowestoft) Ltd [1999]. This amount can be substantial, resulting in a future earning loss for the organization that the employee is working for. This is why it is advised to the Chief Executive to settle the matter amicably with the employee, and allow him to wear the hat that signifies his religious beliefs. However, in case the Chief Executive genuinely believes, and can prove on the basis of objectivity, that it hinders the employee to carry out his occupational requirements and it really is, “giving the wrong impression to colleagues and important people,” then he can uphold the Housing Services Director’s instructions to the employee about taking the ‘skullcap’ off. As far as the work given to the employee is concerned, it must also be objectively justified by the company that the Jewish employee was not put at a disadvantage, and discriminated against, because of his religion or any other reasons. This will release the company off any legal liability. But it must also be noted by the Chief Executive that there have been increasing voices of inter-faith harmony in the parliament as well as on the streets. Lord Mitchell’s statement in September 2011 in the HOL proves that fact when he said, “There is a lamentable lack of understanding of a variety of religious issues, particularly by those who really should know…” Although not obligatory, but the court does take the general public perception in view when upholding the law and adjudicating cases. The best course of action for the Chief Executive to adopt will be to have a discussion with the employee as well as the Housing Services Director to resolve the issue before the company gets bad publicity because of a legal case, and a considerable amount of time, energy, and finances are invested in pursuit of ridding the company off legal complications that may potentially arise. References Autoclenz Ltd v Belcher, 2011. United Kingdom Supreme Court [Online] (July 2011) Available at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKSC/2011/41.html&query=title+(+Autoclenz+)+and+title+(+Ltd+)+and+title+(+v+)+and+title+(+Belcher+)&method=boolean [Accessed 2nd April 2012]. Bilka Kaufhaus GmbH v Karin Weber von Hartz, 1986. Court of Justice of the European Communities (including Court of First Instance Decisions) Available at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/EUECJ/1986/R17084.html&query=title+(+Kaufhaus+)+and+title+(+GmbH+)+and+title+(+v+)+and+title+(+Karin+)+and+title+(+Weber+)+and+title+(+von+)+and+title+(+Hartz.+)&method=boolean [Accessed 2nd April 2012]. Directgov, 2012. Discrimination in the workplace [Online] (2 April 2012) Available at: http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/DiscriminationAtWork/DG_10026557 [Accessed 2nd April 2012]. Equality Act, 2010. 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England and Wales Court of Appeal (Civil Division) Decisions [Online] (Updated 2010) Available at: http://www.bailii.org/ew/cases/EWCA/Civ/2010/80.html [Accessed 2nd April 2012]. Lord Mitchell, 2011. House of Lords debates interfaith dialogue in multicultural Britain [Online] Available at: http://www.parliament.uk/business/news/2011/september/interfaith-dialogue-in-multicultural-britain/ [Accessed 2nd April 2012]. Shamoon v. Chief Constable of the Royal Ulster Constabulary, 2001. Court of Appeal in Northern Ireland Decisions [Online] (2001) Available at: http://www.bailii.org/cgi-bin/markup.cgi?doc=/nie/cases/NICA/2001/23.html&query=title+(+Shamoon+)+and+title+(+v.+)+and+title+(+Chief+)+and+title+(+Constable+)+and+title+(+of+)+and+title+(+the+)+and+title+(+Royal+)+and+title+(+Ulster+)+and+title+(+Constabulary+)+and+title+(+[2001]+)&method=boolean [Accessed 2nd April 2012]. R v Knowles, ex parte Somersett, 1722, Somersetts Case [Online] (Updated 13th 20006) Available at: http://www.historycooperative.org/journals/lhr/24.3/pdf/van_cleve_lhr.24.3.pdf [Accessed 2nd April 2012]. Liam Healy & Associates, 2010. Direct and Indirect Discrimination: A Discussion [Online] (Updated 2010) Available at: http://www.psychometrics.co.uk/discrimination.html [Accessed 2nd April 2012]. Read More