Discrimination and Conflict in Law - Assignment Example

1. Discuss any claims that Jacques and Steve could bring against the firm. (40 marks) In the cases of Jacques and Steve, several of their rights havebeen violated by their employer. The actions of their seniors show that they have been discriminated on grounds of religion, and they have also been harassed and victimised. These actions are against the Equality Act of 2010. Jacques and Steve can bring these claims against their employer since they have enough evidence to prove. The Equality Act 2010 lists religion and belief as a protected characteristic.1 It also describes discrimination as a situation where, because of a protected characteristic, an individual (A) treats another (B) with less consideration than A would treat others. In this regard, Jacques’s right to religion has been violated.2 His manager specifically tells him that he has been dismissed because he is a Catholic, and he dares him to go and report since he thinks Jacques does not have any evidence of his statement. A similar situation is also presented in Eweida v British Airways plc.3 The case applies to Jacques because the employee is discriminated on grounds of his religion. The employer, represented by the senior manager, confronted and threatened to dismiss him because he was a Catholic. Jacques is capable of suing the company in court and even claim compensation for the intimidating and hostile environment created by his manager, similar to the case of Ms Eweida 4 Even though the above case between Ms Eweida and British Airways is not exactly identical to Jacques’s, it sheds some light on the numerous methods in which the right to religion or belief can be violated, and the consequences. The Managing Director at XRA Co infringed the rights of Jacques directly, an action that is punishable by law. Jacques, therefore, can forward his complaints against the company at a court of law. Also, Jacques and Steve can both forward complaints of harassment. According to the Equality Act 2010, harassment occurs when a person (A) engages in undesired conduct related to a protected characteristic. This conduct should be aimed at or have the effect of “violating B’s dignity or developing an aggressive, intimidating, demeaning, humiliating or offensive environment for B.”5 In their case, they can sue the company for harassment since the employer is vicariously liable for harassment committed by an employee of the company in the course of his employment.6 A comparable situation happened in Majrowski v Guy’s and St. Thomas’ NHS Trust.7 Mr. Majrowski asserted that he had been troubled by his manager as a result of being gay. His manager was excessively critical of him, and was rude and abusive to him in front of the other staff.8 Harassment encompasses a vast range of conduct, and the situations of Jacques and Steve can be classified as such. As a result, they are justified, according to the Protection from Harassment Act of 1997, to forward their complaints to a court of law. However, there are time limits specified in different countries in the UK after which such a case would not be considered.9 Consequently, they should go to court early enough to avoid being time barred. Steve can charge his employer for unfair dismissal in a court of law. He has a right not to be unlawfully fired by the employer as provided under the Employment Rights Act 1996.10 According to this Act, Steve meets the qualifications required to place a claim. These are: an employee status, the person has worked for the employer continuously for two years (although there are some exceptions), and the employee has been dismissed. In Steve’s case, he is working under a contract that should be terminated with a four months’ notice. He qualifies for an exception since the two-year working period does not apply to contracts. He can also prove dismissal through the dismissal letter giving him a week’s notice. Since he qualifies for this claim, the employer has to give the reasons for dismissal and prove that they fall within the scope stipulated in section 98 (2) of the Employment Rights Act.11 The employer may also provide other reasons, provided they are valid and reflect a genuine cause for dismissal. In Steve’s case, the employer does not have any valid reason for dismissing him; therefore, his claim is valid. Furthermore, as demonstrated in Booth v Garside and Laycock Ltd,12 the employer is required to prove that the dismissal was fair.13 The company will have to prove that the decision to dismiss Steve was arrived at through a fair process.14 However, we can see that it was unfair because the employer failed to give the four-month notice agreed in the contract. Also, dismissal on grounds of whistleblowing is regarded unfair by default.15 2. George and Mal are seeking advice. Consider the prospects of any claims they may bring under the Equality Act 2010 (30 marks) George and Mal are capable of bringing several claims against their employer as stipulated in the Equality Act 2010. Their cases lean mostly on sexual harassment and discrimination based on sexual orientation. Sex and sexual orientation are among the protected characteristics in the Equality Act 2010. Vicarious liability of the employer also applies in their cases. Mal can bring the claim of discrimination as a result of his sexual orientation.16 When his friends realized that he was sexually attracted to non-living things, they taunted and made fun of him. Mal’s case involves discrimination based on sexual orientation since his colleagues would not treat a heterosexual person in the same way. As long as Mal can prove that this treatment by his colleagues is based on the fact that he is an objectophile, his case is valid. Showing that the less favourable treatment was based on his sexual orientation is important for Mal. For instance, in English v Thomas Sanderson Ltd,17 the claimant was subjected to homophobic mockery by his colleagues at the workplace although he admitted that none of them knew for sure if he was gay. The Court of Appeal ruled that regardless of whether the colleagues knew if Mr English was gay or not, the harassment was based on sexual orientation. As a result, it was recognized as a valid case of sexual orientation discrimination.18 Mr Mal, therefore, does not have to prove his sexual orientation, only the less favourable treatment by his workmates. George can bring claims of sexual harassment against his employer.19 Harassment encompasses all misconduct in relation to a particular characteristic that is aimed at or is capable of violating another’s dignity or generating an uncomfortable environment for them.20 The situation in George’s case qualifies as sexual harassment since the actions of tis senior manager violate his dignity and creates an intimidating environment for him. It would also be harassment if he rejects or accepts the sexual advances of his senior and is subjected to less favourable treatment as a result. It also qualifies as sexual harassment because the treatment from his boss is based on the fact that he is a man, and a female middle-level manager (his comparator) would not receive the same treatment. George is also protected from harassment by the Protection from Harassment Act 1997, which is reinforced by the Equality Act 2010. The Act prohibits harassment in cases where a person engages severally in actions and speech that can be classified as harassment of another, or which he/she knows can be categorized as such.21 The main limitation for George is the fact that he will have to prove that the perpetrator has ‘pursued a course of conduct,’ meaning the sexual advances by his boss have occurred in the past. In Conn v Sunderland City Council,22 it was ruled that both instances must show harassment. The same decision was applied in Iqbal v Dean Manson Solicitors.23 However, if George succeeds in presenting his case, his boss can be charged with a criminal offence24 and a civil action25 taken against her as provided in the Act. He can also be awarded damages if he can prove that anxiety or financial loss resulted from the harassment. Sexual harassment cases are very common in workplaces. For instance, in Noeleen McAleenon v Autism Initiatives NI,26 the claimant was sexually harassed by a male colleague for a while. She forwarded her complaints to her employer but she was subsequently dismissed. The judgment of the case found that she was sexually harassed, suffered anxiety and an uncomfortable working environment, therefore, was compensated. In this case, similar to George’s, the employer is vicariously liable for misconduct by the employees. 3. Outline any claims within the Equality Act 2010 that Eliza and Nick could bring Eliza and Nick have also been discriminated based on several protected characteristics. Concerning Eliza’s case, it is evident that she has been discriminated on grounds of sex. She is the only woman among team leaders and has realized that she is being paid less. According to the Equality Act 2010, direct discrimination as a result of her sex is evident because her colleagues within the department (who are male) are not being subjected to the same treatment. The action falls within the definition of discrimination, and the protected characteristic in this case is sex.27 As a result, she can bring claims against her employer for sexual discrimination. The Equality Act 2010 also protects Eliza from less favourable treatment in section 39(2) (d). It stipulates that an employer should not discriminate against an employee by subjecting him/her to more detriment. In Eliza’s case, it can be considered a detriment since she is paid less for the same type and amount of work as her colleagues. Other cases also reflect the same logic because the comparators were being treated more favourably than the claimants, despite the same working conditions and job group.28 In the case of Nick, there is evidence of indirect discrimination. According to the Equality Act 2010, indirect discrimination encompasses any situation where a person applies a provision, criteria or practice to another, which is discriminatory based on certain protected characteristics.29 Recently, the European Court of Justice ruled obesity could be considered a disability if the individual’s weight prevented full and effective participation at their place of work. This decision was arrived at in Fag og Arbejde (FOA) v Kommunernes Landsforening (KL)30 where the former employee of the Billund Municipal Council claimed that he had been dismissed on grounds of his weight. According to his testimony, he says he was dismissed because he had been unable to tie the shoe laces of the children he was supposed to look after.31 Although obesity is not classified as a protected characteristic in the Employment Equality Directive,32 its effects can cause a person to be less adapted to normal working conditions, thus is considered disability. Nick qualifies in this criterion since he cannot do several things as a result of his weight, including going up a flight of stairs as other colleagues did. In this case, there was indirect discrimination because according to his seniors, he does not portray the right image. The employer imposes this criterion to prevent Nick from pursuing his promotion request, although he feels that he qualifies for the position. Such criterion for selecting a manager is biased and indirectly discriminates him based on his disability, therefore, he can successfully sue the company for discrimination in court. The case of Nick can qualify as harassment, based on his extremely high weight. As stated earlier, morbid obesity that can prevent a worker form working normally is considered a disability. Harassment manifests itself because the comments of his seniors are detrimental to his self-esteem, and make the working environment degrading and intimidating for him. Since the Equality Act of 2010 lists disability as a protected characteristic, Nick is justified to sue his employer for harassment based on his disability.33 However, the ruling of the European Court of Justice indicated that obesity does not apply to all people in all situations. It specified that the individual has to be declared disabled by the national court, and only duties linked to their profession could be considered in a court case.34 Bibliography Primary sources Employment Equality Directive Directive 2000/78/EC Employment Rights Act 1996 Equality Act 2010 Protection from Harassment Act 1997 Booth v Garside and Laycock Ltd [2011] EAT 0003 Conn v Sunderland City Council [2007] EWCA Civ 1492 English v Thomas Sanderson Ltd [2008] EWCA Civ 1421 Eversheds v DeBelin [2011] IRLR 448 Eweida v British Airways plc [2010] EWCA 80 Iqbal v Dean Manson Solicitors [2011] EWCA Civ 123 Fag og Arbejde (FOA) v Kommunernes Landsforening (KL) [2014] CJEU 354 Majrowski v Guy’s and St. Thomas’ NHS Trust [2006] UKHL 34 Nelson v Newry and Mourne DC [2009] IRLR 548 Noeleen McAleenon v Autism Initiatives NI [2013] IT 815 Secondary sources David Cabrelli, Employment law in context (Oxford University Press 2014) Ian Drury, “Obesity IS a disability, rules highest EU court after 25st Danish childminder was sacked for being too fat to perform his job properly” (15 December 2014) John M Wright, Unfair Dismissal Law Fourth Edition (Lulu 2014) Kirtsy Horsey and Erika Rackley, Tort Law (Oxford University Press 2013) Philip Millington, Employment law 2015 (Oxford University Press 2015 United Kingdom Government, “Unfair Dismissal” (12 November 2004) Read More