The Employment Equality Regulations - Assignment Example

UK Employment Laws: Crewe Canal Boats Ltd. Task If Crewe Canal Boats Ltd. intends to push with its policies regarding recruitment, it will be liable for direct discrimination under the following U.K. laws and regulations: Sex Discrimination Act 1975 (as amended); Employment Equality (Age) Regulations 2006; Employment Equality (Religion of Belief) Regulations 2003; Employment Equality (Sexual Orientation) Regulations 2003; Equality Act 2006; and; Race Relations Act 1976. Direct discrimination is defined, in most of the aforesaid laws and regulations, as treatment of a person in a less favorable manner than a person of the opposite sex, different religion, different age group, different sexual orientation or different race (McColgan 2005). Discrimination against women in the employment field is prohibited under the Sex Discrimination Act 1975 (SDA hereafter). Section 1 (1) (a) of that law defines discrimination against a woman on the basis of her sex as one in which a woman is treated in a less favourable manner than members of the other sex. Discriminatory acts by an employer against a woman may be committed, among others, by refusal or intentional omission to offer employment (s 6 § 1 (a) (b) (c), subject only to the exception that the requirement of being a male is a genuine occupational qualification explained in a subsequent provision as one in which the job requires the male physiology (physical strength or agility) or authenticity (in dramatic performances), or the job circumstances are not fitting to a woman or her presence (s 7). The policy of Crewe Canal in exclusively employing only male applicants is a clear violation of the SDA because it discriminates against women on the ground of sex without any justifiable reason. It is not justifiable on the ground of genuine occupational qualification because the available jobs can both be done by qualified males as well as qualified females. Sales and marketing, technical services, legal and financial positions, which compose the workforce of Crewe Canal are not male-oriented jobs doable only by men. These positions are within the capabilities of qualified women as well. These positions are within the capabilities of qualified women as well. The same principle was applied in ACAS v Taylor, [1998] EAT-788-97, where the Court ruled discrimination by reason of sex when a larger number of the women applicants were selected over men during the selection process. The Employment Equality (Age) Regulations 2006 which took effect on October 1, 2006 likewise prohibits discrimination on the ground of age subject only to the exception that such a requirement is a genuine occupational requirement. This means that that the job requires characteristics necessarily related to age (like for example, the agility of younger persons in jobs that require rigorous and continuous physical activity) (s 8 § 2 (a) (b) (c). Crewe Canal’s plan to recruit only males who are aged 35 years old and below are unjustifiable and therefore violates this law. There is no compelling reason why it should limit the age of their workforce to 35 years of age. In the case of Wilkinson v Springwell Engineering Ltd Case No 1600381/05/ (4902/90) the complainant brought a case against Springwell who summarily dismissed her. The Court ruled after hearing the case that she was terminated not because of incompetence but because of her age, i.e., 18, and therefore there was age discrimination. The Race Relations Act 1976 (RRA) is also relevant to the present case. This law prohibits discriminatory practices against persons on the basis of their race. It exists if a person treats less favourably another on racial grounds than he would another or others of a different race (s 1(1)(a). In employment (s 4 (1) (c)), there is racial discrimination by an employer if he refuses or deliberately omits to employ an applicant for racial reasons. The law, s3 (1) defines racial grounds as referring to “colour, race, nationality, or ethnic or national origins.” In the case however of BBC v Souster [2001] IRLR 150, racial grounds was clarified to include birth or adherence. Thus, BBC was liable for racial discrimination when it rejected an English applicant over a Scottish applicant for the presenter position despite the fact that both are whites and with British passports because race can refer to origin of birth or adherence. The exceptions to the racial discrimination rule are employment in private households (s 4 (3)) and genuine occupational requirement which simply means in this context that a position requires the hiring of a person of a specific race for authenticity (in dramatic and entertainment-related performances, artistic/photographic works, for authentic ambiance in restaurants and the like, welfare promotion of a particular ethnic group) (s 5 (2)). Crewe Canal’s policy to employ only whites blatantly contravenes the provisions of the RRA because it cannot find any justification under Section 5 (2) of the said Act. Put in another way, the positions available in the Company do not call for a genuine occupational requirement which only whites can fulfill. Another piece of legislation relevant to the present case is the Employment Equality (Religion or Belief) Regulations 2003. Section thereof states that discrimination exists when a person treats another less favourably than others because of that person’s religion or faith An employer therefore, under s 6 (1) (6), who refuses or intentionally omits to offer employment to another because he has bias against that person’s religion or belief, is liable for discrimination. The only exception to this rule is the standard genuine occupational requirement under s 7(2) which in this context refers to situations in which the employer himself subscribes to certain ethos based on a religion or belief and determines (through consideration of the said ethos) that a certain job requires that the person to fill it must come from a particular religion or belief under s 7 (3). From the foregoing, it is likewise clear that Crewe Canal is liable for discrimination, if indeed it will employ only persons with no strict religious attachment as the present case does not come within the ambit of the exception provided. Crewe Canal’s reason for its plan not to hire strict religious observers does not stem from any religious consideration but on the mistaken belief that such kind of observance will interpose disturbance to serious work. In the case of Hampson v Department of Education and Science [1989] IRLR 629 the Court held that an employment requirement for the filling up of positions is justifiable only if there is an objective balance between its discriminatory effects and the reasonable needs of the employer. In addition, the Employment Equality (Sexual Orientation) Regulations 2003 which took effect on December 1, 2003 specifically prohibits the refusal or the intentional omission of offering employment to a person because of his sexual orientation (s 1(c)). The standard exception to this prohibition is the genuine occupational requirement under s 7 (2) which under this law is related to religious considerations. This means that the discrimination under this law is justifiable only if the employment is related to the exercise of a certain religion and the discrimination is done out of consideration of the doctrines of the religion and/or so as not to offend members of that religion (s 7(3)). Crewe Canal’s plans to discriminate against non-heterosexual males are therefore in contravention to the aforesaid law since this policy is borne not out of religious considerations but of the conviction that non-heterosexual activities will interpose disturbances in the employment environment. In Hubble v Brooks 970/05 Feb 2007 Northern Ireland, two gay men were rejected in their application to manage a Welsh pub on the ground that they would be bad for business despite their claims that they had extensive experience as pub managers. The Court ruled the case as a direct sexual orientation discrimination case. Finally, employers are also prohibited to discriminate against married men (or women). This is the ruling provided in Section 3 of the Sex Discrimination Act of 1975. Thus, Crewe Canal would be again liable for discrimination if it would indeed implement its plan to refrain from hiring married men (or women). Task 2 Under UK laws, the employer is obligated to ensure that the workplace is safe and well-maintained to ensure that employees and workers are free from danger and risk in the course of their work. According to the Health and Safety at Work etc Act 1974, an employer has the duty, among others, to “prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all its employees”(s 2(3)). The only exception to this is when the employer employs less than five workers which is not the case of Crewe Canal. In addition, the Management of Health and Safety at Work Regulation 1999 requires that every employer should make appropriate arrangements for protective and preventive purposes which must be reduced into writing if he employs five or more personnel. In both instances, the employer is mandated to make periodic reviews of his health and safety policy (Mansfield 2007). In the case of Crewe Canal, management has failed to update and revise its own health and safety policy in contravention of the aforesaid provision. There is therefore a breach of duty or failure to discharge a duty (s 2 of the Act) under Section 33 (1) which could result in a prosecution against it. Under another provision of the Act, the body corporate together with the person who could be attributed with the offence, in this case breach of duty, shall be subject to the ensuing liability (s 37 (1)) which could be a fine in the amount of not exceeding £20,000 on summary conviction or on conviction (not summary) to a fine to be determined by the court (s 33 (1) (a). Breach of duty under the Health and Safety Act are prosecuted in criminal courts and aside from the fine mentioned above, imprisonment from 6 months to two years can be an alternative or additional penalty (Mansfield 2007). However, since Chris did not follow correct procedures, he is likewise liable under Section 7 (a) of the said Act which states to the effect that it is the duty of an employee to take reasonable precaution when undertaking his work to ensure his safety and health as well as that of others who may be affected by it. The liability of Chris is therefore the same as the liability of Crewe Canal under Section 33 (1) (a) in which a fine of not more than £20,000 may be imposed on summary conviction and if not, as determined by the court and/or imprisonment. What the employer can do to mitigate its liability in this situation is to admit readily its breach of the duty to update its safety and health policy and at the same time prove that in all other aspects, it has done everything reasonably practicable to safeguard the health and safety of employees and other third parties. The phrase, an employer defence , means doing everything “physically possible and involves a balance to be struck between, on the one hand, the risk to health and safety, and on the other hand, the inconvenience and cost in terms of time, money and other resources of overcoming the risk (Mansfield 2007). In R v Swan Hunter Shipbuilder and Telemeter Installations Ltd [1982] IRER 403, the employer failed to provide safety instructions to the contractor’s employees although its own men were apprised of the dangers of oxygen-enrich atmospheres. One of the contractor’s employees struck an electrical piece in the workplace and fire immediately broke killing eight men including the employer’s own. The Court found Swan Hunter liable for not issuing the safety instructions to the contractor’s employer when the same would expose to risk its own employees who worked side by side with that of the contractor’s. Task 3 Sexual harassment cases are basically governed by the Sex Discrimination Act 1975 (as amended). Section 4A of the law which was recently amended in 2008 states to the effect that harassment, including sexual harassment is applicable in the cases of women, men and those who are about to undergo or have undergone gender reassignment. It constitutes unwanted conduct, unwanted verbal or non-verbal physical conduct (sexual in nature) that has the objective or effect of violating a person’s dignity, or creates an atmosphere that is “intimidating, hostile, degrading, humiliating and offensive” to such person. Under the aforesaid Act, an employer may be liable for sexual harassment in the following manner: direct liability; vicarious liability, and; liability for an agent acting with his authority or if he aids another who commits it (Liability of Employers, Sexual Harassment). An employer is directly liable for sexual harassment if he himself commits it or if he fails to act on a sexual harassment or discrimination complaint. In vicarious liability, the employer commits sexual harassment when his employee commits sexual harassment in the course of the performance of his employment with the employer. This is the intent of Section 41(1) of the Act. In addition, the case of EOC v Secretary of Trade [2007] IRLR 327 held that employers are liable for sexual harassment committed by third parties to his employee, if the employer fails to protect such employee from the third party’s harassment. The phrase “in the course of his employment” was clarified in the case of Jones v Tower Boots C Ltd. [1997] IRLR 168 CA to mean acts taking place during working hours even if the acts are not related to work, implying therefore that acts done outside of work hours are not within the ambit of “in the course of employment.” This is not a cut-and-dried ruling however because there are situations when the courts have ruled that acts done even outside work hours but sufficiently connected to employment can still be ruled as within the course of employment (Liability of Employers, Sexual Harassment). Section 41(2) lays down the third kind of sexual harassment that may be committed by an employer. The employer is likewise liable for an agent’s act (before or after the agency) constituting sexual harassment against a third party, if such act was done under the authority of the employer. Authority in this instance simply refers to the “authority to do an employment-related act, whether the act could be done in a discriminatory manner or a lawful manner” (Liability of Employers, Sexual Harassment). Another law, the Protection from Harassment Act 1997 was likewise cited by the House of Lords as a basis for making the employer liable for sexual harassment committed by his employees to third parties in the course of their employment in the case of Majrowski v Guy’s & St Thomas’ NHS Trust [2006] IRLR 695, [2006] 4 All ER 395. Anent sexual harassment acts committed by his employees, the employer can seek resort to the reasonable steps defence. The reasonable steps defence gives the employer relief from liability when sexual harassment has been committed by his employee or employees in the course of their employment. This defence was laid down in the case of Canniffe v East Riding of Yorkshire Council [2000] IRLR 555 which outlined the defence: there must be lack of knowledge by the employer of the sexual harassment being committed in the workplace and that he has ensure the presence of sufficient sexual harassment policy in the employment, and; that corresponding appropriate action has been taken by the employer in cases where he has knowledge or suspicion of sexual harassment being committed by his employee or employees within the course of his or their employment. References: ACAS v Taylor[1998] EAT-788--97 BBC v Souster, [2001] IRLR 150 Case No 1600381/05 (4902/90) July 2005) Daniels, K 2004, Employment Law for HR and Business Students, CIPD Publishing. Employment Equality (Religion or Belief) Regulations 2003, http://www.equalityhumanrights.com/Documents/Legislation/ReligionBelief2003.pdf Hampson v Department of Education and Science [1989] IRLR 629 Health and Safety at Work, etc. Act 1974. Opsi. http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1974/cukpga_19740037_en_1 Hubble v Brooks Case Ref: 970/05/, Feb 2007, Northern Ireland Liability of Employers. Sexual Harassment. http://www.equalityhumanrights.com/en/foradvisers/EocLaw/eoclawenglandwales/Sexualharassment/Whoisliable/Pages/Liabilityofemployers.aspx Mansfield, K 2007, Workplace Law Handbook 2008; Essential Guidance for Workplace Managers, Workplace Law Group, p 425. McColgan, A 2005, Discrimination Law: Text, Cases and Materials Edition: 2, Hart Publishing., pp 38-40. Race Relations Act 1976, http://www.equalityhumanrights.com/Documents/Legislation/RRA1976.pdf R v Swan Hunter Shipbuilder and Telemeter Installations Ltd [1982] IRER 403 Sex Discrimination Act 1975 (as amended), http://www.equalityhumanrights.com/Documents/Legislation/SDA1975.pdf The Employment Equality (Age) Regulations 2006, http://www.equalityhumanrights.com/Documents/Legislation/Age2006.pdf The Employment Equality (Sexual Orientation) Regulations 2003, http://www.equalityhumanrights.com/Documents/Legislation/SexualOrientation2003.pdf Wilkinson v Springwell Engineering Ltd Case No 1600381/05 (4902/90) July 2005) Read More