Discrimination in UK Employment Laws - Assignment Example

Discrimination in UK Employment Laws Advise the parties as to their rights and obligations under current law: Companies, especially public serviceindustries like catering or airline companies may be given a greater degree of freedom to choose their own rules and regulations, which they could enforce equally and without any degree of bias throughout the organization without contravening the provisions of the UK “Employment Act 2002.” (Employment Act 2002). However, it is now necessary to consider each of these situations separately. (i). Patrick’s Case: There are no laws forbidding companies from enforcing a corporate Code of Conduct and thus Patrick’s stand that he is being discriminated with regard to the laws specifically targeted against male employees is untenable and without proper justification. In a service industry like airlines or hostelling which has high degree of public interaction, companies may be permitted to enforce rules that do not violate human rights. (ii) Johanne’s Case: As per company’s rules, she is constrained to wear high heeled shoes which detrimentally exacerbate for her spinal condition. She could put forth a representation before the management to be specifically waived from this condition and the management could consider her petition on its merits. Whether the management would be wiling to make relaxation on health grounds in the case of Johanne remains is to be seen (iii) Bernice’s Case: This is a classic example of hazards arising out of rules enforced by the management which encourage sexual provocation and harassment of employees. Under S.6 of the Directive 2006/54/EC of the European Parliament ( of which UK is also a signatory) “Harassment and sexual harassment are contrary to the principle of equal treatment between men and women and constitute discrimination on grounds of sex for the purposes of this Directive. These forms of discrimination occur not only in the workplace, but also in the context of access to employment, vocational training and promotion.” (Directive 2006/54/EC of the European Parliament and of the Council 1). Thus, it is very much in Blade Airlines business interests to prohibit such sexual harassment to Bernice and on her part; she could bring a suit against her employers for effective, proportionate and dissuasive penalties.” (Directive 2006/54/EC of the European Parliament and of the Council 4). “In the case of Go Kidz Go v. Bourdouane [EAT 10 September 1996] the appeal tribunal affirmed that an employer has responsibility for preventing acts of sexual harassment by non-employees on employees in the course of their duties once such acts of harassment have been brought to the employers attention. In the similar case of Burton and Rhule v. De Vere Hotels (EAT [1996] IRLR 596) the appeal tribunal affirmed the racial equivalent in that the employer has a duty to protect employees from racial harassment by non-employees whilst in the course of fulfilling their duties.” (Case Law and Out-of-Court Settlements). Anna’s Case: She was assigned high risk trans-Atlantic duty. So, the claim of equal pay for equal work does not arise in Anna’s case. However, there seems to be apparent discrimination against the ruling to reduce Anna’s salary, upon her employer’s knowledge about her pregnant condition. Under the Equal Pay and Equal Directive Act, there are special provisions that deal with pregnant women and the quantum of their payments. Besides, in the Gillespie case, “ECJ decided that the special protection of pregnant employees can be accommodated without requiring employers to pay female employees in full while on maternity leave.” (Killalea). Claude’s Case: He has been denied the company’s leave privileges because of his sexual preferences. He could appeal against this alleged violation of ECJ rules. Claude’s case is very much like the judgement in the “Lisa Jacqueline Grant v South-West Trains Ltd (Judgment of the Court of Justice in Case C-249/96).” After examining the ramification of the case, “However, the Courts reached a considered opinion that community law, as such did not favour discrimination based on sexual orientation.” (Grant). Helga’s Case: She was refused a job on account of her age. Under Article 6(a) of the Treaty of Amsterdam, the European Council shall take such measures as it deems necessary to “combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” (Your Rights and Obligations). 2. To what extent is it injurious to feelings considered in a disability discrimination claim? The extent to which injury to feelings could be considered in disability discrimination claim would depend upon the degree to which this has directly and significantly affected/influenced the deliberations of the disability discrimination. Previously, it was considered that the question of feelings or dignity, arouse only in the case of the detriment or benefit as to the disabled person himself or herself. But, the landmark case of EBR Attridge LawLLP & Anor v Coleman [2009] UKEAT 0071 09 3010 (30 October 2009) changed all that and now it is extended not only to the disabled person but all persons who have a direct link with the affected person. In this case, the question arouse as to whether the “prohibition of discrimination contained in the Directive covers cases where an employee is treated less favourably than her colleagues because, although not herself disabled, she is associated with a disabled person.” (Maduro). The Directive that was applicable in this case is that of European Council Directive 2000/78/EC of 27 November 2000. According to the interpretation by the courts, “It is not that those provisions of Directive 2000/78 that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the directive. On the contrary, the purpose of the directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability.” (Komendova). In the Dunachie case, the question arouse as to compensation for feelings of people. Unfair dismissal should be restricted to economic losses only and not emotional ones. In a closely contested case, in which a senior manager was unjustifiably and arbitrary dismissed due to employer bullying tactics, sued for emotional losses besides economic ones. The case has gained fame as the “Dunnachie (Respondent) v. Kingston-upon-Hull City Council (Appellants)” (House of Lords). “The Council appealed to the Employment Appeals Tribunal (EAT), arguing that the remarks in the House of Lords case were not part of the main reasoning of that case and should therefore be disregarded. The law, said the Council, was that compensation in unfair dismissal cases should cover only financial loss and the sum of £10,000 should not be awarded. The EAT agreed, but gave permission to appeal.” (Unfair Dismissal Damages do not Include Injury to Feelings). Finally, in this Dunnachie case the judges ruled that in the event of unjust dismissals, the compensations could only be restricted to economic losses and not emotional losses translated into cash. However, it is possible that in future years, the aspect of feelings in unfair dismissals would change. Perhaps, “Over the past years, one of the distinguishing features of discrimination claims (as opposed to unfair dismissal claims) is that employees can be awarded compensation for injury to feelings.” (Injury to Feelings). 3. With reference to relevant case authorities, explain how widely the Courts have interpreted regulation 5 (1) of the Employment Equality (Sexual Orientation) Regulation Act 2003: Reg. 5(i) of the Employment Equality (Sexual Orientation) Regulation Act 2003, deals with the aspect of “harassment on grounds of sexual orientation.” (The Employment Equality (Sexual Orientation) Regulations 2003). For the purpose of this rule, it is believed that one person could be in a position to cause annoyance to another person, or engage in undesirable behaviour with the other, with the specific purpose of injuring the mind or body of the victim or his/her pride, and/or self/ respect and also creates an environment wherein there is a presence of aggressive conduct, demanding an hostile animosity directed towards the victim or others. However, it is widely believed that often the courts have taken a strict and narrow interpretation of this section, in that it is necessary that the aggressor need to directly and aggressively purse the victim and it is not that there are cases of consensual behaviour or two sided sexual conduct.”Although the core definition is similar to that used in the Sex Discrimination Act (“SDA”) 1975 (“on the ground of her sex”), but slightly narrower than the Race Relations Act (“RRA”) 1976 (“on racial grounds”) the significant difference between these regulations and all other strands of discrimination legislation is that direct discrimination is capable of objective justification.” (Employment Equality (Age) Regulations 2006). Again, what the courts would also consider in this case is taking into account the circumstances and situational aspects of the case and the attitude of the parties. The courts should be able to confirm and be assured that, such effects were desired and preferred by the perpetrator. Thus, the main aspect that the courts consider would be the motive of the perpetrator and what they actually wanted to achieve from such behavior. In the case of sexual discrimination, it could be in terms of showing preferential treatment to one individual or gender of individuals over another. In the case of “Strathclyde Regional Council and Others v. Wallace and Others Scotland) (1998)”, HOL, lady teachers raised claim to hike their salaries at par with main teachers. After deliberating on the case, the House of Lords observed that no case of sexual discrimination was evident in this case and the appeal was dismissed. (Judgments Strathclyde Regional Council and Others v. Wallace and Others (Scotland)). However, in 1995 case of “Ratcliffe and others v North Yorkshire County Council House of Lords ([1995] IRLR 439,” women catering assistants were dismissed in order to cut costs and become competitive for a county council catering unit. When the case came for hearing, the learned judges held that this was indeed a sex discrimination case, as the primary purpose was to curtail costs through the dispensation of women workers who formed a large part of the work force. (Holland & Burnett). Thus, it could be concluded that whether it is a sexual discrimination case or not, it would depend upon the circumstances of the case and the conduct of the parties and the strengths and weaknesses of their depositions. It would depend upon the surroundings of the case and many other extraneous factors that the final outcome would depend. Works Cited Case Law and Out-of-Court Settlements. Bully Online. 2010. Web. 14 Aug. 2010. < http://www.bullyonline.org/action/caselaw.htm>. Directive 2006/54/EC of the European Parliament and of the Council. Official Journal of the European Union. 2006. Web. 14 Aug. 2010. Employment Act 2002. OPSI. 2002. Web. 14 Aug. 2010. . Employment Equality (Age) Regulations 2006. Dti. 2006. Web. 14 Aug. 2010. . Grant, Lisa Jacqueline. Discrimination Based on Sexual Orientation is Not Covered by the Equal Pay Rules of the Treaty. Press and Information Division. 1998. Web. 14 Aug. 2010. . Holland, James. & Burnett, Stuart. Employment Law. Oxford University Press, 2007. Ptint. House of Lords. Parliament. uk. 2004. Web. 14 Aug. 2010. . Injury to Feelings. Lemon & co. 2010. Web. 14 Aug. 2010. . Judgments - Strathclyde Regional Council and Others v. Wallace and Others (Scotland). Parliament. uk Web. 14 Aug. 2010. . Killalea, Karan. Occupational Sick Pay Scheme and Sex Discrimination. A&L Goodbody. Web. 14 Aug. 2010. . Komendova, Jana. Prohibition of Discrimination on the Grounds of Disability in the EC Law. Law. Muni.cz. Web. 14 Aug. 2010. . Maduro, Poiares. Opinion of Advocate General. 2008. Web. 14 Aug. 2010. . Your Rights and Obligations. European Commission Employment social affairs and equal opportunities. Web. 14 Aug. 2010. . The Employment Equality (Sexual Orientation) Regulations 2003. OPSI. 2003. Web. 14 Aug. 2010. . Unfair dismissal damages do not include injury to feelings. Out Law.Com. 2004. Web. 14 Aug. 2010. . Read More