The of Discrimination - Case Study Example

Case Study Introduction: The major issue that must be considered in this case study is whether or not Ruth Kelly was ed to discrimination by the Housing department and the important aspects that must be taken into consideration wile considering the circumstance sof the case are as follows: (a) Was the interview panel sexist? (b) Was the question about children an inappropriate and illegal one in view of the Diversity Policy? (c) Was the applicant Ruth Kelly subjected to discriminatory treatment as compared to the other applicants? (d) Was the conduct of the interview panel discriminatory in any respect? Legislation that may apply to this scenario: The legislation that may apply in this case is the Sex Discrimination Act of 1975(as amended) which makes discrimination on grounds of sex unlawful (b) The Employment Rights Act of 1996 that lays out the conditions of employment, with reforms introduced as the Employment Relations Act of 2004. The protection from harassment Act of 1997 may also be peripherally relevant in this case. Another piece of legislation that may also be considered in this case is Part II of the Race relations Act of 1976, which deals specifically with discrimination by employers, under which the various freedoms guaranteed to an individual by a State would include the freedom to enter into employment without prejudice. Under Part II, Section 4 an employer’s action would also be deemed to be unlawful under the provisions of this act if he/she discriminates against an employee or potential employee by “refusing or deliberately omitting to offer him that employment.” Since UK is now a part of the European Commonwealth, there are certain provisions of European community law which also have to be applied within the member States. Article 8 of the Convention mandates the right to privacy and individual freedoms while 14 Article 14 of the European Convention on Human Rights mandates that “the enjoyment of the rights and freedoms” in the Convention be secured “without discrimination.”1 The Human Rights Act of 1998 was passed I England pursuant to the European Convention on Human Rights and discriminatory treatment that violates individual freedoms. Under Article 3 of the Human Rights Act of 1998, English Courts are obliged to read and give effect to existing Parliament legislation in such a manner that it will be compatible with convention rights “as far as it is possible to do so.”2 In this context, Feldman highlights the significance of civil liberty as a defining element of the “relationship between the State and its citizens, such as freedom from discriminatory or arbitrary treatment.”3 Analysis: In the case of Equal Opportunities Commissioner v Birmingham City Council 4 it was stated: “There is discrimination under the statute if there was less favorable treatment on the ground of sex….” The legislation in this regard clearly sets out two kinds of discrimination that can occur. The first is direct discrimination, when someone treats a woman “on ground of her sex, less favorably than they treat or would treat a man.”5 The Act specifies that the motive behind such conduct will be immaterial in arriving at a decision s to whether there was direct discrimination. Therefore, the question that arises in Ruth Kelly’s case is – was she refused the employment because she was a woman, and was the treatment less favorable than that which was accorded to a man under the same circumstances? It may be noted that in this case, both the male candidate who was offered the job and Ruth Kelly had the desired professional qualification, but Ruth had a higher level of experience. The Race relations Act deals with discrimination exercised by employers, whose action could be deemed to be unlawful under the provisions of this act if he/she discriminates against an employee or potential employee by “refusing or deliberately omitting to offer him that employment.”6 In the case of Strathclyde Regional Council v Procelli,7 the question that the Court had to consider was whether the wrongful treatment meted out Mrs Procelli constituted sexual discrimination and in this instance the Court concluded that it did, since offensive behavior that was targeted at Mrs Procelli was because she was a woman. In the case of Fletcher and others8 the EAT overrode the finding of the tribunal and stated that discrimination had taken place on grounds of sex. In the case of Miles and Another9 a sex discrimination complaint against the employer was upheld. However, one important aspect that must be considered is that in order to prove that discrimination has occurred10, it is necessary for the plaintiff to establish that another person in her place would have been treated differently. There is also another kind of discrimination identified under the Act, which is indirect discrimination11 where there is equality in a formal sense but in practice, a different condition is applied to a woman. The Housing Council in this case has an Equal Opportunities and Diversity policy and all employees have been asked the same question about children, but the male candidate has been preferred. This appears to prima facie establish that Ruth has been treated differently. However the Act also specifies that a condition or requirement that has been applied as a pre-condition for employment could be deemed to be valid if it is to achieve a “legitimate objective”.12 For instance, the Race Relations Act was applied in the case of Meer Tower Hamlets where it was stated that when an employer sets out certain preferences for a particular job, this cannot be equated with requirements and render the employer guilty of indirect discrimination, since otherwise Section 1(1) (b) of the Race Relations Act would have an “extraordinary wide and capricious effect.”13 Applying this principle in the instant case, it may be noted that there is strong evidence to suggest that the criterion about children was deemed necessary by the Housing Council in view of the complaints from the public about the inability of the previous employee to stay on beyond a few months due to pregnancy. Therefore, the requirement of the Council to be deemed to be reasonable in this case. There is now a burden of proof requirement on the part of an individual alleging sex discrimination by an employer14 which was also the issue raised in the case of Igen Ltd15. Therefore, without the claimant satisfying the burden of proof requirement and showing evidence to support the claim of discrimination, the employer may not be deemed guilty. For example, in the European case of Brunnhofer16 where the question of unequal pay for women was at issue, the Court stated: “a difference in pay is capable of being justified…provided …they constitute objective reasons unrelated to any discrimination based on sex….”. Therefore, it may be noted that all respondents have been subjected to the same question, therefore it cannot be deemed to be discriminatory for reasons of being an inappropriate question to ask. However, when the criterion established in the European case was applied by the EAT in the recent case of Sharp v Caledonia group services17 it stated that employers would now be required to not only prove that the different standards had been applied for a different objective reason, but that such reason could be justified. This was the same position in another recent decision in the case of Adebayo18 where the EAT stated that the employer would be required to prove conclusively that neither the sex of the candidate nor the race had played a significant role in the decided outcome. Hence in Ruth case, is the decision of the Council justified? The fact that Ruth refused to answer the question while the male candidate did, could work against her. Moreover, the comments that Ruth’s performance in the interview deteriorated after that point would appear to substantiate the position of the employer that her performance in the interview was inferior to the other candidate as a result of which he got the job. However, there is one significant piece of evidence available in this case which will be very beneficial to support Ruth’s claims. She has clearly stated that her performance at the interview was directly impacted by the action of one of the members of the panel writing something on a note and passing it around. Further more, the contents of this note stated that Ruth is a “trouble maker”. The tome of the note suggests that there appears to be ground to support the contention that the panel discriminated Ruth. There could be grounds here to suggest that Ruth was subjected to a subtle form of harassment by the member of the panel conspicuously writing uncomplimentary remarks about her in a note. Since this was not done in the case of the candidates, it means that Ruth was subjected to discriminatory treatment. The fact that all the members of the panel were male reinforces the subjective elements of discrimination that could apply. In this case, it appears that similar standards have been applied to men and women and the same questions were asked, however it may be possible to establish that Ruth was a victim of indirect discrimination, since the courts also take into consideration subjective elements in arriving at a decision on whether there was discrimination. The Protection from Harassment Act of 1997 has been applied in some cases to distinguish when vagueness on the part of the employers can be used to establish discrimination. For example, in the case of Dattani 19 it has been established that (a) all evidence can be included as a part of discrimination proceedings and (b) evasive replies or subjective elements can also lead to the finding of unlawful discrimination on the part of the employer. This Act suggests that it may be a criminal offence to cause alarm or distress by a course of conduct. While the conduct of the housing panel may not be deemed to be criminal, however it has undoubtedly caused Ruth alarm and stress since she has been unable to perform to her best in the interview as a direct consequence of the conduct of the panel member who passed the note. Hence, applying the Dattani criterion to the instant case, the note written by the panel member stating that Ruth is a trouble maker can be entered into evidence and the subjective elements of the all-male panel and the subtle form of harassment that was meted out to Ruth by making her uncomfortable through passing the note, could lead to a finding of discrimination, since it may be established that Ruth was subjected to conditions that other candidates were not exposed to. Moreover, the question about pregnancy is one that is naturally more difficult for a woman to answer and could be deemed to be an encroachment on her privacy. The panel could have posed the question in another way which would have been less discriminatory – for example, whether if she was offered the job, she would be prepared to stay on for a certain specified minimum period? In this way, the question would have been easier for Ruth to answer. Where indirect discrimination is concerned, the Courts have strictly enforced the rights of the claimants. In the recent case of Hardys and Hansons plc20 the Court of Appeals upheld the decision of the employment tribunal, that unlike cases of unfair dismissal, there is no room allowed to an employer for a range of reasonable responses test in answering to claims of discrimination. Both objective and subjective elements are considered in arriving at a decision on indirect discrimination, and since Ruth is undoubtedly the more experienced candidate, added to which she was subjected to subtle harassment during the interview unlike other candidates, she may have a valid case for discrimination. Ruth can therefore, submit a grievance letter to the panel and request them to reconsider their decision or alternatively, offer justification for their decision. She will then be entitled to take her grievance to the employment tribunal and the housing Council will be obliged to provide adequate and substantial response and solid justification for their reason not to hire her despite her being the more experienced candidate. Since all available evidence will be admitted in arriving at a decision, the Council’s position is hampered by the note which blatantly suggests that there was an underlying element of discrimination in the decision. Therefore, it is likely that the organization may be liable to pay damages to Ruth for discriminating against her and they may also be required to hire her in the place of the male candidate. Conclusion: In view of al the above factors, it appears that Ruth has a good case to approach the Tribunal on a case of indirect sex discrimination and harassment. Therefore, she may submit a grievance letter and the Council must objectively justify its decision with some solid proof. However in the light of the incriminating evidence in the note, it is perhaps advisable for the Council to try and resolve the matter with Ruth instead. Since another candidate has already been hired, they may also discuss adequate compensation for Ruth, or alternatively reconsider their decision and offer her another interview for a comparable position within the organization. Bibliography Legislation: * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm * Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#3 * Race Relations Act of 1976 * Sex Discrimination Act 1975 (as amended) [online] Guide to the Sex Discrimination Act available at: http://www.womenandequalityunit.gov.uk/legislation/discrimination_act/sda-guide.pdf * The Protection from Harassment Act 1997 Books: * Feldman, David. Civil liberties and human rights in England and Wales. Oxford University Press. 2000: 4 * Selwyn, N, 2004. “The Law of Employment” Butterworths Cases: * Adebayo v Dresdner Kleinwort Wasserstein Ltd (2005) IRLR 514 * Brunnhofer v Bank der Osterrichischen Postparkasse (2001) IRLR 571 * Dattani v Chief Constable of West Mercia Police [2005] IRLR 327. * Equal Opportunities Commissioner v Birmingham City Council (1989) 1 All ER 769 at 744 * Fletcher and Others v Blackpool Fylde & Wyre Hospitals NHS Trust (2005) IRLR, 34 (9): 689-719 * Hardys and Hansons plc v Lax (2005) IRLR 34(9) at 726-734 (September 2005) * Igen Ltd and Others v Wong; Chamberlin Solicitors and Another v Emokpae; Webster v Brunel University (2005) EWCA Civ 142 * Meer v Tower Hamlets London Borough Council (1988) IRLR 399 at 403 * Miles and Another v Gilbank (2006) EWCA Civ 543 * Sharp v Caledonia group services Ltd (2006) IRLR 4 * Strathclyde Regional Council v Procelli 1986 IRLR 134 Read More