UK Anti-Discrimination Law: Effectiveness - Coursework Example

UK ANTI-DISCRIMINATION LAW: EFFECTIVENESS by The United Kingdom – Britain – prides itself as being one of thecore foundations of contemporary governance, moral ideals and principles, crucial in the sustainable development of Democracy. With a rich history and a fitting referencing point, the UK has been one of the leading contributors of current thought on issues pertaining to the universal application of law. This is towards the promotion of universality of law application. Core to this gradual drive, has been its ‘employment equality law’. It pertains to the set of rules, regulations, standards and requirements in place, regarding employment environments, conditions and principles. Majorly so, it is in place to guard against any form of ‘prejudice-based’ actions within the workplace. An integral part of Britain’s Labour Law, it protects workers/ employees against discrimination based on protected human (natural) characteristics. These are inclusive of disability, age, race, religion and beliefs, sex and sexual orientation, as well as marriage and civil partnership. It is enshrined in the 2010 Equality Act, which prohibits any form of discrimination with regard to access to public services, employment, and education, in addition to private services and goods within the UK (Smith & Aaron, 2010:247). It follows guidelines set by three major Directives by the European Union. This is in addition to being augmented by other auxiliary acts such as – the Protection from Harassment Act (1997) and the Trade Union and Labour Relations (Consolidation) Act (1992). The latter is primarily concerned with discrimination within employment, on grounds of existing work status. This is applicable to fixed-term employment part-time employment, agency work and even union membership. The ban against discrimination is based upon a combination of the latter Act, and other statutory instruments as enacted within the EU Law. The UK Anti-Discrimination Law: Foundation and Provisions Having a basis in the prior Equality Act of 2006, the Anti-Discrimination Law goes hand in hand with the established – Equality and Human Rights Commission. As a body, is tasked with strengthening the enforcement of existing equality laws, in essence collaborating with the Citizen Advice Bureau and the ACAS. This is usually in the case of disputes arising from the workplace, which are typically solved there (Hugh, Keith & Aileen, 2005, p 64). This is often in consultation with employee representatives or trade unions. Advice is sought from the ACAS, the Citizen Advice Bureau or a solicitor. In the event of all consultations failing, there is the last option of presenting a claim in an employment tribunal. Core to the above is the fact that discrimination, in all manner of form, is unlawful. This is in terms of employment of an individual, with regard to contract signing, as well as dismissal. As Smith and Aaron (2010) provide, direct discrimination, especially in cases where individuals lack the aforementioned protected characteristics, is not only unlawful, but also unjustified. An exception to be noted is with regard to the Age factor (Smith & Aaron, 2010:364). Globally, the retirement set age is at 55-65, thereby making age as a factor of consideration, to be applicable. This is however applicable if the justification provided, is approved by a court of law, in the presence of a legitimate business validation. In addition, age is a contributing factor to legitimate discrimination, with respect to occupational requirements and role-play. To be noted is that – disability – as a factor, is exemplary from other protected characteristics, such that employers present are under duty (positive), to adjust their workplaces reasonably. This is aimed at enabling a greater accommodation of the needs of existing handicapped staff (Smith & Aaron, 2010:364). Merit as a variable, in terms of employee input, value-addition and capacity, stands above all as the most important determinant, with regard to employment and career advancement (). Thus, any dismissal, because of discrimination, is automatically deemed unlawful and unfair; hence entitling the affected individual(s) the right to claim. This is as provided under the 1996 Employment Act, section 94; with the duration of work input notwithstanding. By joining the EU’s Social Chapter, the Equality Act (2010) mirrors various EU Directives. Majorly so: - the Racial Equality Directive (2008/48/EC); the Equal Treatment Directive (2006/54/EC, for gender), and Directive 2000/78/EC – concerned with establishing a generalized framework on equal treatment, with regard to age, disability, sexuality, religion and beliefs (Hugh, Keith & Aileen, 2005:34) Employment: The Law’s Effectiveness The law covers employees against various issues such as: - harassment and victimization, in addition to direct and indirect discrimination. As Selwyn (2006) alludes, employment law entails two core civil actions, with a basis on the Law of Tort (delict in Scotland), and the Law of Contract. Essentially, a contract pertains to a binding agreement, concerning an offer between two entities/ parties that is legally recognized. This process involves a trade-off of promises, in terms of providing a given undertaking/ input, in exchange for paid wages (Selwyn, 2006:129). To be noted is that parties to a given contract are not free, with regard to negotiation of their own personal terms. This is informed by the imposition of specific minimum requirements and restrictions by the Legislature present. The Law of Tort is an example, which protects workers, employers and other interests from damage, injury or death because of careless behavior within the workplace. This is further augmented by the tort of negligence rule, which necessitates a duty by all employers, to take reasonable care of the existing employee force. This is within their work environment, for the duration of their employment. Other varying forms of torts have also been introduced, through the UK judiciary, with the aim of imposing legal liabilities, concerning industrial action i.e. tort of interfering with business or trade (Selwyn, 2006:134, 145). However, Parliament still reserves the right to provide, under certain circumstances, specific immunities. Positive action, regarded as affirmative action (in the USA), is however prohibited within the wider European region. This is because of its violation of the principle of equal opportunity and treatment. Discrimination law is also blind, educated by the fact that motive is an irrelevant aspect, in a given case scenario. Therefore, either majorities or minorities can make discrimination claims, in the event of unfavorable treatment. An exception exists with regard to enhancing greater integration i.e. in balancing the gender ratio, or ethnic/ racial imbalances. In such a case, the employer may prefer on candidate over another, the equal merit and qualifications of the two candidates notwithstanding. This is the reason behind the term ‘positive action’, which aids in correcting existing social imbalances. This is influenced by the provision of circumstances, as set out in Sections 158 & 159 of the Equality Act (2010), where positive action is permitted (Hugh, Keith & Aileen, 2005:47). Standard Regulations against Different Forms of Discrimination Discrimination though unlawful, may take the form of direct or indirect discrimination, victimization and harassment. Harassment, as provided under the Equality Act 2010 (Section 26), pertains to unwanted conduct relating to an existing relevant, and hence protected characteristic. This is when such conduct has the aim, effect or purpose of violating other individuals’ dignity. This may be through the creation of a hostile, humiliating, intimidating, offensive or degrading work environment for other individuals. It holds true also in matters pertaining to less favorable treatment because of either submittal or rejection of unwanted ‘sexually-inclined’ conduct. Regarding victimization, under Section 27 of the Act, it pertains to the subjection of an individual to further detrimental conditions, even in the event of their prior complaint making. this is further complicated by the issuance of proceedings, which are connected to discrimination on behalf of another person or own their own individual behalf. Indirect discrimination is prohibited under Section 19. This is where there is the involvement of a practice, criterion or provision to all individuals concerned, having a disproportionate effect on a few segments; therefore not justifiable in an objective manner (Smith & Aaron, 2010: 273,275). Height and specific physique are examples of requirements, which may have indirect discrimination. This is due to the dynamic nature of physical human beings, as well as gender differentiation Thus, such a directive needs to be founded on the fact that it is towards the achievement of a legitimate aim, through proportionate means. Case examples would be the – R (Seymour Smith) v Secretary of State for Employment [2000] ICR 244 or Enderby v Frenchay Health Authority (C-127/92) [1994] ICR 250 cases. In the case of direct discrimination, there is bias based on a protected characteristic. Under Section 13, it is unlawful to mistreat on the premise of a protected characteristic, whatever the circumstance prevailing may entail (Selwyn, 2006:157). However, limitations occur within specific fields such as armed forces recruitment, as well as theatre performance and role-play specific job, categories amongst others. discrimination by association may also warrant the issuance of a claim, by an individual affected, through provisions as enacted within the European Court of Justice. A case example would be the Coleman v Attridge Law case. All protected characteristics, other than that of Age, are legally observed, as there lacks the presence of defense and justification. These and other forms of breach of contract can be evoked in a court of law, with the express aim of issuing claims pertaining to discrimination. Claims may end up as suits for damages and compensation, because of loss suffered, loss of credibility (defamation), injuries and even deaths. To be noted, about job offers, is the Police Act of 1997 (Sections 112-127), which necessitated the issuance of certificates of good conduct from relevant security agencies. These usually provide details of the applicants, in terms of criminal pasts/ records amongst other issues. This is towards enabling the potential employers have pertinent information prior to the job offer (Smith & Aaron, 2010:414). This is especially critical with regard to applications for specific posts of a sensitive nature i.e. working with vulnerable adults, or the care of children. In conclusion, with regard to a contract there is the necessity of an employment offer to exist, in addition to the acceptance of such an offer being present. It is under such contexts that claims brought fought in a court of law, can hold ground through the aspect of being legally binding. Various laws and regulations, as supported in the revised 2010 Equality Act, provide a cushioning ground against all types of discrimination. This is within the workplace, with the presence of a legally binding contract. It is only in very limited case scenarios and circumstance, where discrimination may be valid through attribution to specific job requirements. Age, as a protected characteristic, is also prone to effect, as specific job occupational requirements may necessitate limitations. Reference List Hugh, C., Keith, E. & Aileen M 2005, Labour Law, Text, Cases and Materials. Hart. Selwyn, NM 2006, Selwyn’s Law of Employment. Oxford University Press. Smith, I & Aaron, B 2010, Smith and Wood’s Employment Law, (10th Ed.). Oxford, UK: OUP Oxford. Read More