The Role of the Law in Guaranteeing Equality and Justice - Essay Example

Equality Act Introduction This document examines the extent to which Equality Act promotes equity and justice in the society in relation to hate crime. The goal is to determine the deficiency of this Act to achieve its purpose in relation to the laws of Equality and justice. In the contemporary society, the laws recognize the diversity of the workforce as well as the provision of services and property.1 The implication of such view is the enactment of various legislations to promote equality of justice of the disadvantaged or vulnerable groups. Equality may imply different things to different people. Laws are universal and apply to people of different spheres of lives, across gender, races, etc. The law of equality and justice influence individuals’ ability to amass endowments and enjoy proceeds from such endowments, right to access resources, and enjoy liberty as free agents in the social order. In UK, the law recognizes that equality may occur in many ways.2 The equality principle might impose duties that might be focused on eliminating stigma, redistribution, and accommodation. These duties may include “formal equality, equality of outcome and equality of opportunity.3” The equality of process involves ensuring uniform treatment for all persons in any given situation. Equality of worth is about giving each the same respect. Equality of outcome entails focusing on similar wealth and educational achievement.4 Finally, equality of opportunity ensures that persons should not be limited from achieving their goals by the circumstances beyond their control. The observation is that in an ideal situation the outcomes are dependent on available opportunities and opportunities for the outcome.5 For example, if a person is from poor a family they are unlikely to realize educational potentials, and because of lower educational achievement the potential for earning better salaries or wages is low.6 Therefore, laws on equality and justice aim at minimizing the gaps between those who are well of and those likely to suffer the worst. The rules of equality and justice are broader than the requirements of Equality Act 2010. Hate crime Hate crime is a violent crime inspired by biases as a result of group affiliation of the victim.7 These crimes vary in magnitude and may include damages to property, physical assaults, harassment, insults, bullying, offensive graffiti, verbal abuse, etc. The hate crime laws aim at preventing crimes based on bias and protecting the innocent persons from any harm cause by the perpetrators of the crime. Hate crime is harmful to primary victim and also causes fear to other persons with similar characteristics. Laws on hate crime includes the laws that crimializes specific acts motivated by bias, laws establishing distinct civil cause of act for hate criminalizes, laws enhancing criminal laws and the law demanding administrative agencies to gather data on hate crime.8 The criminal laws and punishment signals the community that particular conducts are wicked and thus tends to mould the conscience of the society in order to promote impartiality. For example, the Crime and Disorder Act 1998 criminalizes assaults based in religious or racial assaults and intensifies the punishment for the offence. Under this Act, it is not necessary for the victim to prove that the assault was instigated by bias. Also, the victim does not need to have been aware of the prejudice. For example in the case of Rodgers [2007]UKHL8 a man who called three Spanish Women bloody foreigners and used threatening words was guilty of racial discrimination against all persons who were not of British origin. Under the Criminal Justice Act 2003 the judges can heighten the penalty to the offender of a crime motivated by prejudice. Furthermore, under Public Order Act 1986 a person is held liable for a crime based on race, religion, gender, etc. if they intend to cause racial hatred by use of abusive language. This can attract a penalty of up to seven years imprisonment. Equality Act 2010 Equality Act 2010 is an Act of Parliament of the United Kingdom that reflects on provisions and implementation of the major EU Equal Treatment Directives. This Act codifies various Acts and Regulations that established the sources of anti-discriminatory law. For example, the act deals with issues of equal pay, protection against discrimination on the basis of sex, race, region, disability, and age.9 The Act is applicable to employment areas and the service providers by requiring them to make appropriate changes to ease accessibility of services, goods, premises, facilities, etc. by all persons. The adjustments include getting rid of barriers that can prohibit people with disability from enjoying particular services or resources.10 The focus of such directives is to ensure persons with disability have equal access to public property, services, employment opportunities, education, etc. just like other persons.11 The Act establishes criteria for settling disputes between employers and their workers. The Act protects employees against any form of discrimination at their workplace. It prohibits employers from treating any of their employees less favourably than others on the basis of one or more the “protected characteristics” such gender, age, race, religion, etc.12 For example, it requires the employers to treat both male and female employees equally. The employers should offer equal opportunities to their employees irrespective of the gender or any other characteristics described by the Act. They should provide their employees equal pay for similar jobs and ensure they have secure work environment. Under sec 39 article 1 of the Act, the employer should not discriminate workers during the recruitment and hiring of workers. Article 2 prohibits employers from subjecting their employees to unfair conditions by ensuring they offer them equal opportunities during the promotion, training, transfer or when providing any other benefits. Art 3 prohibits employers against victimizing the workers. The Act protects the rights of workers including pregnant mothers and requires one employee be given treatment that are similar to those given to other workers. Sec 40 of the Act prohibits employers from harassing their employees and requires them to protect their employees against harassment by their fellow workers. In the course of employment, the employer must protect the workers against harassment by third parties. However, the employer must be aware of the harassment by a third party in order to protect the workers.13 The Act also applies to contract workers as the principle is required to ensure favourable terms of work with their contracted workers. The employers should offer their workers an opportunity to access all facilities that relate their work, offer them equal opportunities and benefits as well as protect them against any detriments in their working places. It is illegal for the employers to discriminate their employees on the basis of work status irrespective of whether workers are full-time, part-time, agency, union membership, etc. However, in case of harassment, victimization or any other form of breach of the Act that has no relationship with the protected characteristics falls beyond the scope of the Act and will require application of other laws to protect the rights of the victims.14 Under section 26 of the Equality Act, 2010 harassment occurs when a person engages in undesirable activities associated with related protected characteristics where those conducts have effects of undermining the dignity of other person or intimidating them. The Act applies to direct and indirect forms of discrimination. Direct discrimination occur where the employer treats an employee less favorably than others while indirect discrimination occurs where the employer impose policies that that have significant impact on a particular group with protected characteristics than others without any proper justification.15 However, even persons without protected characteristics can raise claim of direct discrimination in their workplace if the basis of discrimination is related to their association with persons having protected characteristics as stated in the case of Coleman v Attridge.16 However, in some cases an employer can raise a defense against age discrimination with a justified reason. Also, other protected characteristics have no justifiable reason for discrimination. The case in Coleman v Attridge establishes the fact that the equality laws protect persons with protected characteristics as well as those associated with persons with such characteristics.17 In this case, the claimant had a disabled son and worked for the defendant as secretary. However, the defendant accused the plaintiff of taking advantage of the status of her son’s condition to manipulate appeals for working time. She was dismissed and presented the claim of unfair dismissal to the court. The ruling was that an employer can demonstrate discrimination against disabled persons by targeting those related to them. Although these directives seem to offer shield persons with a disability against discrimination by their employers, the law does not provide an approach for protecting the employer against abuse of responsibilities by such employees.18 Equality and justice laws require justice for all. Considering the issues related to direct and indirect discrimination as stated in the Equality Act 2010 on employment it is apparent that the law justifies some form of discrimination in the workplace. This implies a person can discriminate another person in their workplace as much as they want without causing a breach of law as long as those persons have not protected characteristics.19 For example, if the victim does not have evidence that the cause of discrimination was related to any of the protected characteristics whether directly or indirectly they cannot raise a valid claim of discrimination under Equality Act 2010. However, one can rely on other laws to raise a claim against the employer on unfair treatment or discrimination without specifically basing the case on Equality Act 2010. This can even be a case between the employer and the employee where the employee is terminated unfairly without any consideration of protected characteristics. However, under Equality Act 2010 one must relate the cause of discrimination to particular protected characteristic. For example, in the case of Mandla v Dowell-Lee, a Sikh boy was denied entry to Park Grove School by the head teacher on the claim that his father did not prevent from wearing a turban and shave his hair.20 His father launched claim with Commission for Racial Equality, which brought the case before the court. However, the appellate court held that Sikhs was ethnic or racial groups according to the definition of racial groups by the law hence were unprotected. Therefore, it is apparent that the Equality Act 2010 provides protection to the persons or group of persons having the particular protected characteristics and stipulated in the Act. A person or group of persons should be recognized as possessing particular characteristics in order to obtain legal protection as stated in the case of Lewisham LBC v Malcolm.21 Those who do not possess the protected characteristics cannot raise successful claims against of discrimination under the Act because they are not protected by the Act. Furthermore, it requires a person to treat all persons similarly irrespective of their social backgrounds. On the other hand, the laws protect all persons against any form of discrimination irrespective of their social groups or affiliations to particular groups with protected characteristics. This seals the loopholes created by the Equality Act 2010 where a person may discriminate another person belonging to the same social class. In this regard discrimination equality and justice is determined by a person’s conduct towards another person in relation to the social affiliation, but it depends on what law describes as right or wrong.22 Therefore, the conducts of a person are not assessed in relation to what they can do other persons or groups of persons as is the case of Equality Act 2010 which is a consolidation of numerous acts of parliament against discrimination on specific basis. Equality Act 2010 illegalizes direct and indirect discriminations of a person or persons in relation to disabilities in employment, transport, education, and provision of goods and services. It protects persons with a disability against unfair treatment on the basis of their disability. However, Employers can use medical criteria to offer employment to particular individuals of eliminate persons with particular disabilities.23 However, the employer can objectively deviate from this requirement by ensuring if they prove that the hiring persons with disability will hinder them from achieving their goals. Similarly, they can defend themselves by giving evidence that they were unaware of the disability and could not be reasonably expected to know the person had a disability.24 Such a situation may arise where the disabled employee is terminated from the job due to prolonged absence, and the employer can show objectively that his actions are justifiable. Equality and justice laws focus on providing equal opportunities for all individuals irrespective of their social orientation. Ensuring justice for all persons plays a critical role in promoting equality because it can help individuals exploit their potential in accessing public resources, employment opportunities, etc.25 For example, in most cases women in UK and other parts of the world have limited opportunities to own resources and dispose of them in their own names. This has hindered the potential of women to get economically empowered like their male counterparts. This has also reduced their productivity and opportunities in the society as well as their bargaining power. Furthermore, lack of title deeds as the right of ownership of land resources has hindered women from accessing credit and their opportunity to invest in land and improve its productivity.26 The implementation of equality and justice in increases the potential of women and other persons with restricted characteristics to access and use public property, resources, enjoy employment opportunities, etc. The laws also establishes criteria for settling various disputes relating to discrimination of persons on the basis of restricted characteristics. While the Equality Act 2010 prohibits discrimination of women, the Act is not sufficient to promote equality and justice because it does not offer broad guidelines to protect women and empower them economically. The Act does not promote justice where issues involve persons with similarly protected characteristics.27 For example, when injustice or inequality has been propagated by one person against the other, but where persons have same protected characteristics the Act does not provide resolution to such issue.28 However, the equality and justice law each person gets what they deserve irrespective of social orientation. It provides the uniform legal procedure for handling disputes between the conflicting parties without imposing disparities in social alignments.29 The issues of gender discrimination have focused on conducts of men towards women. Women are considered most vulnerable hence the Equality Act 2010 aims at creating equality by empowering women and limiting the aggressiveness of men in the society. The law should aim at punishing crime and correcting injustice as opposed to giving a particular group more powers and rights over another. For example, if men are found abusing women they should be given equal punishment that would be given to fellow women found guilty of the similar offense.30 Furthermore, women should not be given any advantage over men. The law should provide a level ground for all participants to ensure fair competition and justice. Furthermore, religious discrimination is a complicated issue that has not been addressed explicitly by the Equality Act 2010. Various policy makers have argued that addressing socio-economic issues on the basis of religious beliefs can create hatred among the communities and can damage social cohesion. They claim that victimization or harassment of persons on the basis of religious differences cannot lead to the fair decision without creating further drift in the society. However, such issues can be addressed adequately through other laws to promote justice and equality in the society. Conclusion The employees and other providers of public services and property have a duty to enact policies to protect the rights of the workers with disability, races, gender, religious views, etc. The Equality Act 2010 aims at promoting the justice and equality for the groups or individuals with protected characteristics. However, the Act does not address all the issues of inequality and fairness exhaustively. This is because some injustices can arise in situations not related to protected characteristics, and such issues cannot be addressed by the Act. However, other laws can actually be applied to promote equality and justice. It is apparent that relevant should be applied to achieve justice and equality for all parties involved. Bibliography Altschiller, D 2005, Hate Crimes: A Reference Handbook, ABC-CLIO. Clark v TDG Ltd (t/a Novacold Ltd) [1999] IRLR 318 Chakraborti, N & Garland, J 2009, Hate Crime: Impact, Causes and Responses, SAGE, Pp. 1- 200. Colker, R. 2008, When is Separate Unequal? A Disability Perspective, Cambridge University Press. Crime and Disorder Act 1998 Criminal Justice Act 2003 Donald, A 2012, Equality and Human Rights Commission Research report 84 Religion or belief, equality and human rights in England and Wales. London Metropolitan University. Pp. 1-234. Retrieved from http://www.equalityhumanrights.com/sites/default/files/documents/research/rr84_final_opt.pdf Equality Act 2010 European Commission Justice 2011, European Gender Equality Rule, Pp. 1-152. http://ec.europa.eu/justice/gender-equality/files/egelr__2011-1_en.pdf European Commission, 2013, Developing Anti-Discrimination Law in Europe: 1-135. Retrieved from http://ec.europa.eu/justice/discrimination/files/comparative_analysis_2013_en.pdf Gerstenfeld, P. B. (2013). Hate Crimes: Causes, Controls, and Controversies. Sage. Gerstenfeld, P. B. 2006, Criminal Justice, Volume 1. Salem Press 1-1318. Gov.UK, 2013, Policy paper 2010 to 2015 government policy: equality. Retrieved from https://www.gov.uk/government/publications/2010-to-2015-government-policy-equality Gov.UK, 2014, Guidance Disabled people’s user-led organisations: list and contacts. Retrieved from https://www.gov.uk/government/publications/disabled-peoples-user-led-organisations-list-and-contacts Lewisham LBC v Malcolm [2008] UKHL 43.  Murdocca, C 2013, To Right Historical Wrongs: Race, Gender, and Sentencing in Canada, UBC Press. Pp. 1-280. Perry, B 2009, Hate Crimes: Hate crime offenders, Volume 4, Praeger Publishers. Perry, B 2012, Hate and Bias Crime: A Reader, Routledge. Pp. 1-512. Perry, B 2008, Silent Victims: Hate Crimes against Native Americans, University of Arizona Press. Pp. 1-155. Perry, B 2009, Policing Race and Place in Indian Country: Over- and Underenforcement, Lexington Books, 2009. Pp. 1- 117. Public Order Act 1986 Rex, S  & Tonry M. 2012, Reform and Punishment, Routledge. Pp. 1-272. Rodgers [2007]UKHL8 Sherry, M. 2012, Disability Hate Crimes: Does Anyone Really Hate Disabled People? Ashgate Publishing, Ltd. Pp. 1-182. Sionaidh Douglas-Scott, 2015, A UK Exit from the EU: The End of the United Kingdom or a New Constitutional Dawn? University of Oxford. Pp. 1-12. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2574405 Smit, D &Snacken S 2009, Principles of European Prison Law and Policy: Penology and Human Rights, OUP Oxford. Pp. 1- 488. Snacken, S & Dumortier, E (Eds), N.d., Resisting Punitiveness in Europe?: Welfare, Human Rights and Democracy Stop Hate UK 2014, Hate Crime: The Case for Extending the Existing Offences Response of Stop Hate UK to the Law Commission. Retrieved from http://www.stophateuk.org/wp-content/uploads/2014/05/Stop-Hate-UKs-Response-to-the-Law-Commission.pdf Streissguth T 2009, Hate Crimes, Infobase Publishing. Pp. 1-337. Thornton M (N.d), Sex Discrimination in Uncertain Times. ANU Press Library. Retrieved from http://press.anu.edu.au/apps/bookworm/view/Sex+Discrimination+in+Uncertain+Times/5321/ch09.xhtml Tonry, M 2013, Confronting Crime: Crime control policy under new labour, Taylor & Francis. Pp.1-264. Weber, M. C., Mawdsley, R. & Redfield, S. 2010, Special Education Law: Statutes and Regulations, LexisNexis. Pp. 1-644. Read More