Employment Law: Discrimination And The Laws Governing The UK - Essay Example

Employment Law: Discrimination And The Laws Governing The UK This paper seeks to examine and evaluate the three cases of Claudia, Craig, and Gina. The area of law that cut across all the three cases is discrimination in the employment field. To provide an insightful vindication concerning the cases, the paper will sieve the area of discrimination in general into the screens of reality and truth in reference to the laws governing the UK. Thereafter, the essay will examine some legal issues surrounding ease case, as well as discuss case laws and other provisions relative to the issues in question. Equality Act of 2010 of the UK legislation stipulates on issues of discrimination in the employment arena1. The sole purpose of the act is to codify numerous acts and regulations by forming the platform for laws that are anti-discriminatory in Britain. The main statutory tools that formed the basis of the act were the need to protect discrimination in employment on the accounts of age, religious beliefs, disability, and gender among others2. In a situation or a case that involves disability, service provides, as well as employers are mandate with the task or rather obliged to make adjustments that are not only rational but also reasonable at the work place that are aimed at minimizing barriers that are likely to be experienced disabled persons. Interestingly, this does not apply in the Northern Ireland. The Equality Act 2010 integrated and repealed earlier laws on discrimination in employment3. In addition, it amended case laws into one act. The principles with the equality acts come into force in early October 2010 though other provisions come into force later in 20114. However, there are other acts which have progressively been in force. Some of these acts are the Equality act of 2006 and Disability Discrimination Act of 19955. Equality and Human Rights Commission provision highlights the types of unlawful discrimination as both direct and indirect or victimization and harassment. These provisions are embedded in the Equality act of 2010. The code of EHRC practice of 2010 stipulates that employment cases that emanate from either direct or indirect discrimination are usually dealt with by approaching such cases using comparator approach. An investigation must be done to examine how the employers treat their workers or staffs with comparison being made between those who need protection and those that do not need protection. However, not comparison is needed in cases of either harassment or victimization. Equality Act 2010 illuminates those complaints regarding discrimination should be launched and heard by the employment tribunal. The complaints should be submitted within the three months of occurrence though the tribunal has the leverage of another date deemed to be not only reasonable but also fair, as well. It is of vital importance to comprehend that the codes provided in the EHRC practice in the domain of the equality act does not compel employers to follow the codes6. However, these codes of practice can be used as evidence in the judicial or court proceedings or even the tribunal when attempting to solve the complaint in question. The other legislative law that can be incorporated in cases related to discrimination is the applications of laws provided by the European laws. In the event that the laws of the UK do not commensurate or align with those of the European laws, then the European laws with be employed. This law consists of Directive, Article of the Treaty of Rome, Recommendation, and the European Court’s of Justice (ECJ) decision. The ECJ within its jurisdiction can make a ruling and interpret the EU directives in scenarios where the local legislation is not vivid or does not coincide with the directives of the EU. The directives of the European Union (EU) in reference to Equal Treatment in Employment and Occupation condemn discrimination at workplace on the basis of age, sexual orientation, disability, and religion. Fortunately, the Equality Act of the UK law has integrated the above directive. The other source of laws with also substance validate issues related to discrimination in employment is the Human Rights Act 0f 1998. It integrates or rather synchronizes the European Convention for the Protection of Human Rights and the Fundamental Freedom with the laws of the UK7. Claudia’s Case Claudia is a partner at a consultancy firm whose agreement provides that once a partner reaches 65 years of age, he or she is bound to retire from the partnership. Claudia’s request to continue serving in the consultancy is rejected by follow partners who in turn offer to give a retirement package of 32,000 pounds. This package is only payable on retirement. Claudia believes that she is being compelled into retirement and considers the act as unlawful discrimination. When she considers taking the matter to the employment tribunal, the payment offer is withheld or rather withdrawn. Her former partners arguments that the intention of retirement policy is geared towards the retention of staff and improvement of the planning of the workforce. Moreover, the partners also believe that the policy on retirement minimizes the chances of dismissing employees who are not performing and promotes good relation between the partners8. In this particular case, there are factors that need to be examined using high definition quality glasses. One of the factors is to determine if the firm discriminated against Claudia on the grounds of her age. The other factor entails the issue of harassment to comply with the directives of the consultancy firm. She is offered a retirement package and when she expresses her displeasure towards the firm’s decision, the firm withdraws the goodwill payment. Apparently the goodwill payment is used as a bait to lure her into employment. The third factor which is likely to complicate the situation in question they had a partnership agreement that once a partner reaches 65 years of age, the partner is bound to retire on the calendar year. This case can be weighed on grounds of either direct or indirect discrimination. The Employment Equality (Age) Regulation 2006 outlawed discrimination based on age in both employment and training that is vocational. The government, however, provided restrictions to the protection of individuals beyond 65 years9. A default retirement age was created to be 65 for both gender and employers have got the leverage of setting up a compulsory age at 65 years and above. The only scenario that impel employers to justify forced retirement is at the age which is below 65. In practice, therefore, employers can force employees to retire at the age of 65 or reject the recruitment of individuals beyond that age. The employers have to follow due procedure by giving a notice of 6 and 12 months to the employees who have attained the retirement age and it is unlawful to force them. The workers can request to continue discharging their duties beyond their retirement age even if their employers want them to retire. Furthermore, the employers are at liberty to reject extension request and there are no reprisals or they are not obliged to give reasons for such decision. Powis and Bonino (2012) point out that the default retirement age of 65 was abolished in 2011 and the government allowed employers to establish their own retirement age that is justifiable. The set age should be objective, as well as justifiable for the purpose of meeting the employer’s aims that are legitimate for the introduction of the policy. The judicial proceedings of Seldon vs Clarkson Wright and Jakes-partnership at the Supreme Court illuminates that the technicality that may be involved in the justification of retirement age10. Seldon was forced to retire when he attained the age of 65 under their partnership deed. The bone of contention was whether the compulsory retirement was a channel of achieving an aim that was legitimate. The case provided a platform for reference for other similar cases. Through the Supreme Court, the findings were that the techniques for the justification of indirect and direct age discrimination differ. Direct discrimination is justifiable if the aims have objective of social policy and not personal reasons specific to the situation of the employers. Social issues may encompass situations such as the reduction of cost or competitive improvement11. Age discrimination is justifiable if they are consistent with these social policies. The partnership in Seldons case just like Claudia’s claimed that they had aimed at ensuring the retention of employees and that it would provide opportunities in terms of partnership available. Moreover, the partnership wanted not only to facilitate planning in the workforce but also minimize the termination of employees based on performance management. The Supreme Court therefore found the claims justifiable and consistent with the social policies. In addition, the objectives of the social policies are approved and legitimized by the European Court. The case described above is quite analogous to that of Claudia’s and the consultancy firm predicament. For Claudia to prove that she the partnership has directly discriminated against her due to age, she has the task of proving that indeed the aim of the partnership was not intended for reasons based on the partner but objectively incorporated the social reasons. However, she can still aggravate for the good will since the withdrawal is a sign of victimization for her to retire and not launch complain. Craig’s Case Craig thirty three years of age wishes to be a firefighter but he is surprised at the news that his age is beyond the recommended age for new recruits. He is convicted that it is unlawful. The conditions labeled for the new recruits stipulate that they should be physically fit and the maximum recruitment age for firefighters is 30 years due to physical demand that come alongside fire services. Moreover, the maximum age is required to optimize the duration of individual career within which fire fighters can perform their duties effectively and efficiently. It also ensures that there is continuation in the capacity of operation, as well as appropriate functioning of the services of the fire station. The issue in contention in this particular case is discrimination for recruitment opportunity being pegged on age. The UK laws elaborates that it is unlawful to directly discriminate against individuals. The discrimination may emanate when individuals are treated in a manner that is less favorable in comparison to others perhaps due to their real age or the perceived age12. Moreover, it is wrong within the confines of the law to make a decision not to employ somebody because of their age. However, in some situations that are objectives, it is justified. These circumstances where individuals can be discriminated against due to age are limited13. One of these circumstances that provide the leverage for lawful discrimination is when the objective is justified to treat an individual(s) differently. For example, some jobs may compel employers to set maximum recruitment age or even promotion. In case Craig decides to launch a case in the employment tribunal or it proceeds to judicial litigation, the Craig should be conscious to the fact that either the tribunal or the court accepts evidence based claims of discrimination. Thereafter, the employer will be burdened to prove that it never discriminated against him. It is prudent for employers and workers to know that the Equality act of 2010 had the sole purpose of harmonizing laws related to discrimination. A similar case that can be used as an analogy to Craig’s is that of Wilkinson vs Springwell Engineering Limited. Miss. Wilkinson was terminated from employment on accounts of her capability14. The firm made inaccurate accusations against because she was 18. The firm was unable to objectively justify their claims and Wilkinson emerged victorious for being discriminated directly because of her age. In some scenarios, occupational requirements can be used as a defense in the judicial proceedings or litigations. The context and nature of a particular job/work being specified for a particular age or group may be an occupational requirement15. For firms or employers to use this as a form of defense the requirements have to be those that achieve legitimate aim. Though, this defense is usually narrow in practice. Another cases example that can provide some insights on the actions Craig can employ is the case of Prigge and others v Deutsche Lufthansa AG where the European Court of Justice (ECJ) held the claim of air safety as a legitimate objective aim under the EU directives16. However, despite affirming the legitimacy aim, it was out of order in the German and international law concerning the maximum age required for air pilot. Deutsche Lufthansa had set out the maximum age to be 60 while the international law had fixed the maximum limit to be 65. It is for this reason that age limit was not consistent with other laws hence it did not qualify as an occupational requirement17. Baker vs. National Air Traffic Service Limited was an example of direct discrimination. The company in question had limited individuals beyond the age of 36 from applying for the positions as trainee for the air traffic controller18. The employment tribunal rules that it was a case of direct discrimination on age which lack sufficient justification. The company employer was faulted for approaching the situation without being open minded or conscious by relying on evidence that did hold and were not objective and lacked legitimate aim19. The laws dictate that not only should be justification on issues related to the one in discussion be having a legitimate aim but also the means for the achievement of the aims being consistent and proportional (rational)20. Furthermore, the employer was also faulted for not providing alternatives that are less discriminatory on the ban about age bar they had set. Craig will have the task of finding a comparator which in this scenario may tend to be a hard nut to crack. Gina’s Case A preamble into Gina’s case illuminates that Gina has been dismissed from her nursing job at the nursery a month ago. She is convinced that her obesity is the sole cause of her predicament and regards herself as a victim of discrimination due to disability as she categorizes obesity as a disability. Her employer did not give reasons behind Gina’s termination though they argued that obesity was not a disability. One of the factors to be considered in this case is to determine the point within the confine of the UK and international laws when to consider a situation as a disability case. The other factor in this particular case is that the employer does not give reasons for her dismissal. Since October 2010, discrimination due to disability was embedded into the Equality Act to provide protection to people with disability in the climate of employment. The legislation bans discrimination of the disabled individuals not only in employment but also in other forms in the society at large. The employers are mandated with the task of readjusting conditions at the workplace in a manner that enables the disabled persons to perform their tasks appropriately and effectively. On the contrary, in the armed forces, the act does not hold21. It is unlawful for employers to discriminate against the disabled on the grounds of dismissal or termination process, recruitment and retention of staff, transfers and promotions, and development and training22. The UK laws, as well as, the international law define disability as the impairment of the brain (mental) or physicality in a manner that substantially affects one’s ability to carry on with the daily activities and the effect is long term. The issue in discussion must be substantial (that is, it has to be trivial). If a person is convinced that he or she has been discriminated against, the individual can take the case/issue to the Employment Tribunal23. In the event that they emerge victories in the litigation, the can claim financial losses and damages due to injuries in reference to feelings or inconvenience caused. Gina in this case should seek legal representation from an experienced litigant. Obesity can be faceted as a disability if it prevents an individual form performing daily activities. In 2014, the EU court ruled that obesity can be a disability. The ECJ was tasked with the mandate of coming up with a legal solution concerning a male in Denmark who was dismissed on the grounds of being extremely fat24. The court argued that if obesity hampered an individual form effectively performance and participation at workplace then it was a disability. It is imperative to know that EU ruling are at times binding across the entire Europe. The presiding judge illuminated that obesity was not a disability but in the event that a person had long term impairment due to obesity, they could have protection by the disability legislation. Gina therefore has solid backing of the law and since the employer lacks objective grounds towards her dismissal, launching complain to the tribunal may facilitate justice in her predicament25. Bibliography: J. Powis and R. Bonino. UK Supreme Court Rules on Two Important Age Discrimination Cases. 2012. Available http://www.employmentlawwatch.com/2012/05/articles/employment-uk/uk-supreme-court-rules-on-two-important-age-discrimination-cases/#more (Accessed on 13th April 2015) DoyleClayton . Age Discrimination Law. 2013. Available www.doyleclayton.co.uk (Accessed on 13th April 2015). BBC News. Obesity Could Be A Disability: EU Court Rules. 2014. 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