Discrimination Equality and Harassment in Work Place - Essay Example

Discrimination Equality and Harassment in Work Place Name: Instructor: Course: Institution: Date: Discrimination Equality and Harassment in Work Place The concept of discrimination in the Equality Act 20101 requires the company to understand that it is often the environmental factors such as the employers working practices, rather that the limitations as a result of the employees disability, which restricts the disabled employees to fully participates in their duties. Understanding such principles can assist the employer to avoid discriminating against John on the ground of his disability. As such, the employer is entitled to make certain adjustment to ensure better participation of John in the work place. The fact that John is disabled does not in any way warrant the employer to discriminate him; adjustments should rather be made to accommodate his disability. It is as imperative for the company to consider the aspects of employment and occupation that make it difficult for John to perform, as it is to understand the particular nature his disability. For example, the company may opt to consider whether his current duties contribute to his mental instability, perhaps due to their demands. Additionally, the employer should avoid making assumptions as far as John’s disability is concerned. It should not be assumed that John cannot be of any value to the company or that his mental illness cannot allow him to undertake a demanding task, unless such assumption is justifiable. In this case, the company should be able to justify its claim that his mental illness has occasioned his dismal performance in the work place. To avoid discrimination, the Act requires the employer to obtain personal or internally sourced information and expertise, especially if information is obtained from the disabled person. However, although the Act does not particularly require the employer to obtain expert advice about meeting the requirements of John with regard to his employment, it may in this case become necessary to do so in accordance with the principal duties set out in the Act. Expert advice is in this case useful because John is newly disabled and because the effects of his disability has evidently become significant. To avoid discrimination, the law requires the employer to implement anti-discriminatory policies and practices2. Such policies can minimize the possibility of legal action. In that regard, the employer is not shown to have implemented any meaningful policies; the company has been reported to have no room to maneuver, in changing of John’s duties. This puts the company at a greater risk of being charged of discrimination. Additionally, the employer s is supposed to develop and implement a comprehensible, effective and reachable equal opportunities policy, which particularly incorporates issues of disability. By tackling complaints in this manner, the employer can be seen as underpinning a message to John that they regard complaints of disability and discrimination in a serious manner. John’s complaints have not been taken seriously and as a result, the company is most likely, liable for charges of discrimination. The Act makes it illegal for an employer to discriminate against John in relation to retention. As such, company’s lack of valuable contribution from John should not lead to his dismissal from the job. However, the Act does not forbid the company from appointing the best person for his current position, nor does it prevent it from treating John’s disability more favorably than those who are not disabled. As such, the employer should have considered John for a suitable alternative post. In case a reasonable adjustment is not available, John may be allowed to continue doing the current job. Alternatively, the employer should consider retraining John or undertake any other reasonable adjustments. Whether it is practical for an employer to make any adjustment should have depended on factors such as cost effectiveness. In this case, the tribunal is entitled to find out whether the fact that the company is very small; justifies its inability to accommodate adjustments. However, if it is disclosed that the company was in a position to make some adjustments, then it should be charged for discriminating John. The law requires that the employers ensure that arrangements for promoting staff do not discriminate John for his disability. Instead of overlooking John for promotion on the grounds of his disability, the company ought to have undertaken reasonable adjustments in various stages in the promotion. Even if John who is a disabled employee and could be suffering from depression, applies for promotion to be a senior position, The person responsible should not argue that John would be unsuitable on the ground that he would not be able to cope with the stress of the job. The employer needs to produces substantial evidence to support his allegations. Merely making an assumption about his disability is unlawful and unjustifiable in this case. It is probable to be discrimination if the dismissal made on the ground of his disability. However, it would be justifiable to dismiss John if his disability makes it impossible for him to perform the main tasks of his job, and if an adjustment is completely unreasonable. As such, the employer can argue in this case, that the company is very small and cannot reasonably contain John in another position.3 3Disability Discrimination Act There are rules about what the law considers as a disability, when deciding whether or not, discrimination happened. Subject to the provisions of the Act, an employee has a disability if he has a physical or mental disability which has a considerable and long-term impact on his capability to perform normal day-to-day activities. This fact is very evident in John, as he is unable to concentrate on the job, and there is some evidence that his illness could affect him for lest of his life. If the company is not competent enough to provide an opinion as to whether John has a considerable psychological disability, then the act allows the company to seek an opinion from a consultant psychiatrist, something that John’s employer has not yet done. A mare examination by a medical specialist does not give conclusive evidence that John is actually disabled. Furthermore, the specialists had stressed that he is not trained psychiatrist. The tribunal has to unanimously make a decision as to whether the employee is disabled, and the meaning of disabled should be referred from disability and discrimination Act. In vicary v british telecommunications: A woman had a disability relating to the use of her right arm and hand, and suffered pain doing various tasks. The employment tribunal held that she did not have a disability as it did not have a "substantial" effect. It is for the tribunal to decide whether the applicant has impairment which has a substantial adverse effect on normal day to day activities (has held that a tribunal makes error of law if it relies heavily on medical opinions on those issues) The Employment Appeal Tribunal disagreed. For example, the tribunal's conclusion that her lack of ability to cut up meat or roast potatoes could not "as an isolated example" make the impairment substantial seemed to the EAT to show a misunderstanding of the task in hand. It was clear that an ability to prepare vegetables, cut up meat and carry a meal on a tray would all be regarded as examples of normal day-to-day activities. An inability to carry out those functions would, in the EAT's view, obviously be regarded as a substantial impairment of an ability to carry out normal day-to-day activities. It can also be argued that it would be a considerable impairment of ability to carry out normal day-to-day activities if Vicary could not wash or unload a shopping trolley in more quantities. The fact that a person can reduce the effects of their disability should not be construed to mean that they are not disabled. The tribunal should find out how Johns disability contributes to his every day duties. From the case study, it is almost probable that the tribunal shall decide that John is disabled as is evidenced from the way it has substantially affected his performance on the job. 4 Harassment is unnecessary behavior related to an applicable protected characteristic, such as sexual orientation, which effects and violating an individual’s dignity or creating hostile, intimidating, humiliating, degrading, or unpleasant surroundings for that individual. Whether intentional harassment which is clear or violent, or unintentional, the tribunal should consider it unlawful. In this case, it may involve name calling, nicknames, mockery, or other behavior which might not be maliciously intended but which is offensive. Whether it involves the individual’s sexual orientation (perceived) or it may be about the sexual orientation, the tribunal should consider it as harassment. The is however important to note that harassing behavior may not always concern sexual orientation, and hence the company’s claim that discrimination against Christine was not on grounds of sexual orientation does not hold any water. Hating or excluding Christine by the colleagues because of her perceived sexual orientation is harassment which should be prevented by the company by putting up formal policies and structures to deal with the vice. 4vicary v British telecommunications The company should have ensured that all the workers understand what discrimination and harassment is and that it is unlawful and inadmissible. However large or small the organization is, the law requires that it is good practice for the company to have an Equality Policy and to train and educate all the employees to make certain that they understand their rights and responsibilities. Christine can successfully bring charges against the company on the grounds that it did not have any formal equality and harassment policy. Equality and harassment policy is the best way for the company to reduce the possibility of discrimination and harassment and may help limit the company’s liability and grievances from the employees. When providing equality training, the company should aim at curtailing issues such as homophobic remarks and jokes and the use of unsuitable language. Some words can be considered as distasteful, and may be considered as harassment. In respect to sexual orientation, words such as bisexual, heterosexual, gay and lesbian are generally unacceptable. The company should ensure that the staff understands that if they harass Christine, they could be individually liable and may be compelled to pay her compensation. Such liability is in addition and separate from what the company is ordered to pay. Workers should be made to understand that mockery without offensive intention may not constitute a defense. In addition, an absence of complaint from Christine does not mean that harassment has occasioned. Although some employees may have specific views about sexual orientation related to their belief or religion, no employee should be discriminated because of religion or belief. The company can lawfully require that the employees do not noticeably reveal their religion or belief in the work place in a way that violates the company’s Equality Policy; for example, by discriminating against or harassing Christine for holding particular sexual orientation. Christine should be made aware of clear steps she could take if they felt discriminated against or harassed by her colleagues. She should be made to feel confident that her complaint shall be treated seriously, and that managers shall find the cause of the problem and that the process shall be embarked on in confidence. If it is possible, the law allows the company to have a particular individual who is trained and in charge of dealing with employment equality issues. The company should have monitored sexual orientation to enable examination of policies and practices affecting the.5 In essence, the fact that Christine had not reported to the management within the first eight months cannot be a defense on the side of the company. As discussed, it is the responsibility of the company to ensure appropriate policies are put in place to prevent harassment, and as such, it is not the responsibility of the employees to keep on reporting cases of harassment. The tribunal shall apparently consider the company to have grossly violated its duty to protect employees from harassment, especially because Caroline had reported her predicament yet no appropriate action was made. Making informal warnings does not measure up to the requirements of the law, and hence the company is liable to pay damages to Caroline. 5Equality Act 2010 Statutory Code of Practice: Employment Read More