Employment Law Discrimination in the Equality Act 2010 - Essay Example

Employment Law discrimination (19s) in the Equality Act 2010 Essay Nonmember 24, 2011 Words: 4,347 Name: Name of the client Institution: Name of institution Introduction Equality Act 2010 is a law that sought to bring equality in the working environment by banning acts like unfair treatment of employees in the workplace and thus creating conducive conditions whereby equality in places of work is achieved and also extend to the general society at large. This Act therefore, synchronizes and substitutes the legislations which had previously been enacted for instance DDA 1995 (Disability Discrimination Act). The Act further consolidates the virtue of consistency in all workplaces for employers are compelled to comply with the provisions stipulated in the Equality Act 20101. The Equality Act 20101, has made it easier for disabled persons to prove that there are disabled unlike in old legislations whereby it was difficult for employees to prove that there are disabled. Equality Act 2010 also provides employees and employers with an opportunity to minimize the chances of unlawful discrimination through its framework rather than waiting for unlawful discrimination to take place an then seeking redress after disabled people have been discriminated against in the workplace2. One of the ways the Act does that is by limiting how the employer can target to discriminate against an employee through asking questions related to health when an applicant is applying or being interviewed for a job. Equality is mandatory if any government is to achieve its social and economic objective within any country. Equality is widely acknowledged by governments in the aim of providing frameworks that are legislative and that will help them in upholding the rights of individuals and thus attain equality to all citizens regardless of race, gender, employment among others. Equality Act 2010, bar any kind of discrimination whether directs or indirect on the grounds of the set protected characteristics that are outlined in the Equality Act of 2010 which became effective as from 1st October, 2010. The Act therefore protects employees from being discriminated on the basis that they possess a protected characteristic3. According to the Act, discrimination becomes unlawful if it occurs within the context of the set protected characteristics. In line with achieving equality and eliminating unfair treatment, everyone is considered to have one of the set characteristic and thus everyone is protected by the Equality Act 2010. In the old legislations that were replaced by the Equality Act 2010, it was very hard for an employee to prove discrimination arising from disability. However, the new and unified definition of indirect discrimination and which can be applied to the nine protected characteristics gives greater autonomy to employees in proving that they have been discriminated against in disability related discrimination. Definition of discrimination, types of discrimination and the extension that were made in the Equality Act 2010 Discrimination occurs in various categories namely, direct, indirect, harassment of the victim and victimization. Direct discrimination is whereby A out rightly discriminates against B because B has what the law terms as a protected characteristic. Under direct discrimination, there exist various classes of discrimination for instance, associated discrimination which is discrimination of B by A on the basis that B shares a close connection with C who has a protected characteristic. Perceptive discrimination is also another class of direct discrimination whereby B is discriminated by A on the basis that B has a characteristics that A has perceived of B which is a mistaken perception. The extension in direct discrimination in the Equality Act 2010, covers protected characteristics for instance age, gender reassignment, disability and also sex. Of important to note is that the law allows an employer to directly discriminate against an employees on the basis of age4. For hostility to comprise discrimination, it is taken in the context of unwanted conduct that A might have with B and in regard to a protected characteristic that B possess to the extent that the unwanted conduct is effecting/violating B’s dignity, intimidating B, creating hostile and degrading conditions for B, or even humiliating B. However, application of harassment excludes some protected characteristics like marriage and pregnancy among others. Victimization on the other hand takes the form of when discrimination occurring to B who is an employee of A simply because B is seen to support or even advance grievances in regard to the Equality Act 2010. Indirect discrimination occurs where A can discriminate against B by applying prerequisites, standards or perform an act (practice) which is considered discriminatory in regard to the protected characteristics of B’s. However, the prerequisites, standards or practice so discussed are only termed as discriminatory when they are only viewed in terms of the protected characteristics that B has if; A uses the characteristics to other people who do not have the same characteristic as B, If people who share the same characteristic as B are at a disadvantage when they compare themselves with people who do not share the same characteristics with B. If B is put at a disadvantage because he/she has a protected characteristic It is not justifiable as a means of attaining an aim that is legitimate For a disabled person to be ascertain that he/she was discriminated as a result of his/her disability, the following conditions needs to be met, Person A treats person B unfairly because B has a disability. Person A cannot justify that the discriminatory treatment to B is legitimate. However, for A’s unfair treatment to person B, A must have knowledge that B has a disability and thus the absence of A’s knowledge that B has a disability cannot amount to discrimination. Discussion of how the extensions in the Equality Act 2010 are impacting on the disabled persons in pursuit of claims of discrimination This extension of indirect discrimination (S19) in the Equality Act 2010 to even cover the protected characteristic of disability and also introducing the new grounds of discrimination arising from an employee’s disability (S15) is creating confusion and raising issues in relation to the grounds in which an employee is to submit a claim for discrimination on the part of a disabled employee and also the employer’s knowledge as to the existence of a disability. Notably too, in employees advancing claims based on discrimination as a result of disability in indirect discrimination, the employer too is looking after the interests of the company, a loophole created through the onus placed on the employer to put up a defense based on achieving a legitimate aim. “If an employer's agent or employee (such as an occupational health adviser, a personnel officer or a recruitment agent) knows, in that capacity, of an employee's or applicant's or potential applicant's disability, the employer will not usually be able to claim that they do not know of the disability, and that they cannot therefore have subjected a disabled person to discrimination arising from disability."5 Consultation Draft Employment Code of Practice thus outlines that the employer should do everything possible and where possible to find out if the employee has a disability and it is only when that the employer can therefore refrain from discriminating an employee on the basis of disability6. However, the Equality Act 2010 as previously discussed in the introduction section of this paper, limits the employer in asking a prospective employee questions related to health. The employer can only ask questions related to health when he/she has recruited an employee. It is only when the employer can make reasonable adjustments to eliminate discriminating an employee who is disabled. For if the employer asks questions relating to health before recruiting a potential employee and then go ahead and refuse to recruit the potential applicant, it can amount to discrimination and the individual can seek redress in the Courts of Law. The extension in indirect discrimination in the Equality Act 2010, covers protected characteristics of disability and also gender reassignment. A person is said to be disabled or has a disability if “he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities”7. In Goodwin v Patent Office [1999] IRLR 4 EAT, the case established the basis upon which the definition of disability was to be based. Disability is defined in the context of whether the person in question has an impairment, whether the person’s impairment is adversely affecting his/her activities that he/she carries on a daily basis, whether the effect (adverse effect) is extensive and lastly whether the effect is long term8. In this regard, it clearly emerged that a person’s disability is not to be based on whether the disabled person is able to perform his/her normal activities but what the disabled person can or cannot accomplish taking into account his/her disability9. In Vicary v BT [1999] IRLR 680, EAT, the concept normal activities which are put to test to evaluate whether the impairment has an effect on the day to day activities of a disabled person is not limited and also includes the activities that the disabled person does on his/her own for instance, knitting10. The act of revoking the Employment Tribunal Judgment that Mrs. Vicary was not disabled by the Employment Appeal Tribunal showed that by the mere fact that a disabled person can tone down their disability to reduce the effects of being disabled does not eliminate the fact that there are disabled. This further cements the changes that were brought by the Equality Act 2010 which makes it easier for employees to show that there are disabled. Prior to the extensions in S 15 in the Equality Act 2010, indirect discrimination was thought to be insufficient in protecting disabled citizens from discrimination, hence the introduction of the extensions and particularly “Discrimination arising from Disability”. S 19 gives disabled people a greater autonomy in proving that there had been discriminated against by their employers, but also on the contrary, the employer has an onus of defending his prerequisites, practice and standards that he/she may have applied to the disabled person. In line with making it easy for disabled persons to prove that there had been discriminated against by an employer11, S 15 was amended to eliminate the presence of a comparator for the disabled person to prove that they had been treated unfairly in comparison to treatment received by a person who is not disabled. However, discrimination is proved by the disabled person if even after the adjustments made by the employer, the disabled person still feels vulnerable. In a twist of events, discrimination can therefore not be expressly justified like it had been previously been justified in the DDA. Discrimination that arises from disability in accordance to the Act is only applicable to people who are disabled. In accordance to the act (S 15), discrimination of a disabled person occurs where the person is treated unfairly than others are treated, a claim which needs to be based on the existence of the person’s disability and that such a treatment would not have applied to others who do not have a disability, and that the unfair treatment that the disabled person gets is because of his/her disability12. Also if the employer cannot show that the unfair treatment to a person with disability is a means through which a legitimate aim was achieved13. S 15 also outlines that for a disabled employee to prove that he/she has been discriminated by the employer because of his/her disability, the employee must prove in his/her defense that the employer was duly informed that the employee suffered from a disability. This places the employer in a position to build up a defense by proving that he/she was not aware that the employee suffered from disability14. For instance, in the case of Archibald v Fife [2004] UKHL 32 1 July 2004, the employer, Fife Council, already knew that Mrs. Archibald was disabled under S 4 (2) (d) of the DDA 1995, whereby, the law does not permit the employer to discriminate an employee who he or she has or had employed. In this case, the employer had full knowledge that Mrs. Archibald was disabled and therefore Mrs. Archibald could not claim that she was discriminated by Fife Council on the basis that she was disabled but her claims revolved around the employer reluctance to make reasonable adjustments for instance eliminate competitive interviews. In addition, if a health practitioner of an applicant to a post in a company indicates that an applicant is not disabled, the employee may also omit the fact that he/she has a disability for the sole reason of obtaining an advantage so that the employee can secure a job and then claim that the employer make reasonable adjustments when already recruited. The reasonable adjustments which are to be made by the employer are at his/her discretion. Thus, the employee cannot claim to be discriminated against by the employer if the employer does not make the reasonable adjustments that he/she was expecting. Section 6 of the Act also outlines that the employer is supposed to show concern and thus prevent the disabled person from being at a disadvantaged position than other people who are not disabled. Thus discrimination also occurs where the employer fails to show responsibility to the disabled person. In Y v Calderdale Council, an applicant was awarded damages by the employment tribunal in the view that he had the same chances of passing the interviews had the employer made rational adjustments when interviewing the disabled applicant. The applicant’s disability was stammering and therefore, he failed in the question and answer session despite performing well and without discrimination in the other sessions for instance the written test. This evidence further cements that the onus of making reasonable adjustments falls on the employer15. This conclusion is based on the fact that the applicant indicated that he had a disability in the application form but minimized the information he gave about his disability to further improve his probability of being shortlisted16. In the Equality Act 2010, Chapter 2 (20) (4), the standard that applicants had to pass the question and answer session and which the client’s disability became clear to the interviewing panel, the employer ought to have eliminated the standard so that the disabled applicant would be of equal standing with the other applicants. With this regard, the disabled applicant had performed well in the other tests and thus if the employer had made adjustments, the disabled applicant chances of getting the job would have been improved through the elimination of the practice or the standard. In indirect discrimination, the basis of proving appropriate grounds to submit a claim by the disable person becomes difficult for not unless the claimant can link that the unfavorable treatment was as a result of his/her disability is the court to rule in his/her favor. Thus the controversy surrounding indirect discrimination in regard to disability becomes harder for the claimant to prove that he/she received unfair treatment in the workplace due disability. In the case of Clark v Novacold (1999) IRLR CA17, the appellant, Mr. Clark, lost in claiming that Novacold discriminated against him in regard to his disability. The Industrial Tribunal did not fail to outline that the appellant was disabled for Mr. Clark in his line of duty suffered physical injuries which incapacitated him form successfully continuing to work in his line of duty which required a lot of manual work. His long absence from work led to the Industrial Tribunal conclusion that Mr. Clark was not treated any different from others were the same sets of conditions that underlie his case applicable to another person who did not have a disability. On being challenged, Novacold sited their evidence of a legitimate aim which in law ought to correspond with the aim of the employer and also the employer must have no other alternative of achieving the legitimate aim than to discriminate against the employee18. It is with this regard that Novacold was able to build its defense against discriminating Mr. Clarke19. It was justifiable enough that Novacold having met the requirement that they were aware that Mr. Clarke was unable to perform his duties, Novacold was able to show that by dismissing Mr. Clarke, the company was achieving a legitimate goal. Aligning its defense with the definition of a disabled person in regard to the Equality Act 2010, Mr. Clarke’s injuries were having an adverse effect on him and thus his absence from work20. Thus, for the company to achieve a legitimate aim, a replacement for Mr. Clarke’s position had to be effected as the solution. In the case of Archibald v Fife [2004] UKHL 32 1 July 2004, in regard to Section 5 (1) of the DDA, the claimant allegations that the Council had not treated her favorably was dismissed by the Tribunal on the grounds that the employer justified that the claimant was unable to continue performing her duties that she was employed to perform in the Council before she was disabled21. The onus placed on the employer to prove that he/she acted reasonably in discriminating against an employee with a disability presents a problem to employees in proving that there was discriminated against them by the employer, discrimination arising from disability. In this case of Archibald v Fife [2004] UKHL 32 1 July 2004, the Council had adjusted for Mrs. Archibald by transferring her to a position that did not involve manual work. However, Mrs. Archibald claim that she was subjected to competitive interviews was seen as a move that would be aimed at placing a disabled person at a more advantageous position than other people who are not disabled. In addition, section 6 (7) of the DDA stipulates that there is no expressly outline duty for the employer to favor the disabled employee for instance through abolishing competitive interviews so that the disabled person is at an advantage over other persons who are not disabled22. On the other hand, the conditions and the terms of employment is what changed in Mrs. Archibald situation and therefore the preexisting conditions in which she previously worked under still remained. Mrs. Archibald was therefore unsuccessful in the Employment Tribunal in claiming that she was discriminated against by the Council as an outcome of her disability23. However, following this case, it emerged that the employer has a duty to formulate rational adjustments to the extent that the disabled person can be accorded favorable treatment (positive discrimination) and this concept became apparent when the case was taken to the House of Lords with the help of Disability Review Commission. In Jones v PO [2001] IRLR 385, CA, the judgment for the unfair dismissal of Jones proved that employers are in the position of protecting their companies interests through defending their actions were on reasonable grounds. This also prevents the Employment tribunal in settings standards in such cases, and employers are seen as the only arbitrators when citing the DDA 1995 Act that their decisions are within reasonable range24. Of interest to note is on what grounds should a disability associated discrimination be justifiable by the employer. This case leaves us with no doubt that there is confusion for a disabled employee in claiming for discrimination for it is apparent that an employer and not the Employment Tribunal is the sole determinant of whether the disabled person’s detriment treatment amount to discrimination. The question to ask is whether the employer’s defense of their actions being justifiable can be debated about or can be justifiably challenged. There is little space as to how one can challenge the defense put forth by the employer in his duty of achieving a legitimate aim and also in his/her duty of providing reasonable adjustments (Clark v Novacold (1999) IRLR CA). In regard to the definition of disability that should incorporate adverse effects that should be experienced by the disabled person for a long period of time, some people who may be disabled but feel the effects of their disability are episodic may be discriminated against since they may not have fully met the conditions of being disabled in view of the DDA definition of disabled. In Cruickshank v VAW Motorcast Ltd [2002] I.C.R. 729; [2002] I.R.L.R. 24 (EAT), questions involved issues with some elements of the definition of a disabled person. In such a case where a person experiences episodic effect of disability, the employer may not have knowledge as to the existence of the disability and thus the disabled employee may be discriminated against by the employer. For instance, for a person who has a hearing problem that is episodic, the employer may dismiss the employee without the knowledge that the employee is disabled. Without such consent, the employer may put a prerequisite or conditions that may discriminate the employee for instance, the employee may fail to be promoted because of a single instance in which his/her episodic hearing disability effects may have occurred when the employer was there25. Then again, if an applicant to a post in the organization is successfully shortlisted for a post in a company and had not included that he/she had a disability because the effects of his/her disability are episodic, the applicant may therefore assume that the effects will not occur during the interview. The applicant may be disqualified if the episodic effects occur during the interview and the prospective employer may not be at fault. The prospective employer defense would be built on the lack of knowledge of the existence of the applicant’s disability. By allowing the employers to put up a defense based on lack of knowledge of the existence of an applicant’s disability further ascertain the premise that it is difficult for a disabled employee submitting a claim for disability even though he/she has met the definition of disability and this eludes the core essence of such claims and further poses difficulty for disabled employee who are discriminated against by their employers26. When the cost of proving that a disabled employee has been discriminated against by an employer falls on the employee against a company that is well established and have resources to cater for the litigation costs, the disabled employee in most cases ends up giving up for the disabled employee may be required to go beyond his/her General Practitioner’s report in proving that he/she has a disability27. Most of the time, companies are the ones which ends up winning the cases as evidenced in the cases which have been summarized in this paper. In conclusion and basing my argument on a very subjective opinion, I fail to draw the line between the protection accorded to disabled people against discrimination if the employer even under duty to make reasonable changes is not compelled by law which changes he/she is to make to eliminate discrimination to the disabled person. Then again, questions of how to justify a legitimate aim by the employer in discriminating a disabled employee arises. When will an employer not have a legitimate aim bearing in mind that the employer is after the interest of his organization? Who is to fight for reasonable adjustments beyond what the employer offers so that disabled employees can also feel comfortable and free from discrimination from their places of work? How is equality achieved in the workplace, if employers are to claim legitimate aims in their defense against discriminating a disabled employee? One of the aims of the Equality Act 2010, is ensuring that places of work are free and fair from discriminating disabled persons. The extensions in the indirect discrimination (S 19) in the Equality Act 2010, to cover the protected characteristic of disability and, introducing the new ground of discrimination arising from an employee disability (S 15) only causes confusion in relation to the appropriate ground to submit a claim for discrimination on the part of a disabled employee and also the employer’s knowledge as to the existence of a disability. Not to say that the Equality Act 2010, has some flaws but the 2010 Act should amend the provisions of reasonable grounds and also legitimate aim. For disabled persons too are people who also want to make a living the same way the organization is trying to achieve a legitimate aim. Therefore, employers and the policy makers should accommodate the disabled for it is not someone’s will to be disabled. Therefore, the question of reasonable adjustments and legitimate aim should not arise. But all is not lost, for the harmonization of the previous legislations in the Equality Act 2010, shows that discrimination arising from disability will soon be done away with. Bibliography Acas Website. Retrieved on 23rd November, 2011. Retrieved from www.acas.org.uk 2 SMITH, I. & BAKER, A. Employment Law. 10th Edition. UK. OUP Oxford, 1995 3 Protected characteristics are age, race, disability, marriage, pregnancy, civil partnerships, maternity, religion, gender reassignment, belief, sex and sexual orientation. 4 MORRIS, G. & DEAKIN, S. Labour Law. UK. Hart Publishing, 2005. 5 Consultation Draft Employment Code of Practice, para, 3.65 6 Ibid (4) Para, 7.13 7 Disability Discrimination Act 1995C. 50Part 1, S 1 (1 & 2): Meaning of “Disability” and “Disabled Person” 8 Disability Discrimination Act 1995 9 Goodwin v Patent Office [1999] IRLR 4 EAT 10 Vicary v BT [1999] IRLR 680, EAT 11 Disability Discrimination (Employment) Regs 96/1456; 12 James, G “The Meaning of Disability: Physical and Mental Impairment” (2002) 31 ILJ 156 13 Disability Discrimination (Meaning of Disability) Regs SI 96/1455 14 Section 15(2) 15 See, Kapadia v Lambeth BC [2000] IRLR 699, CA, the employee has consent to reveal of his/her disability to the employer. 16 Y v Calderdale Council, Employment Tribunal, Case No. 1806514/02, July 2003. Retrieved from http://www.stammeringlaw.org.uk/cases/calderdale.htm, retrieved on 24th November, 2011. 17 Clark v Novacold (1999) IRLR CA 18 See also Baynton v Saurus General Engineers Ltd [1999] IRLR 604 19 In Novacold defense against discriminating Mr. Clarke, Novacold defense team argued that the company needed someone to perform the duties that were being performed by Mr. Clarke whom the doctor’s did not even ascertain as to the duration that he required for him to go back to work and continue with his duties. Thus, it was a justified legitimate aim that the company undertook in safeguarding the efficiency in running the company. 20 Ibid (17) 21 See Sec. 5 (1) (b), 4 (2) (d) of the DDA Act. 22Employment tribunal rejected Morse application and the Employment Appeal Tribunal also ascertained that reasonable adjustments by the employer does not necessarily means that they can also apply to arrangements between the employer and employee. Whether the employee is to be terminated or he/she continues to work. 23 Kenny v Hampshire Constabulary [1999] ICR 27, there is a limit as to the reasonable adjustments than an employer should make so that a disabled employee is not at a disadvantage, DDA 1995 S.6. 24 Jones v PO [2001] IRLR 385, CA 25 See also Murray v Newham CAB [2003] IRLR 340, The EAT found that a man whose paranoid schizophrenia resulted in a tendency to physical abuse had an impairment as the tendency to physical abuse was not a freestanding condition but resulted from his mental illness. 26 Doyle, ‘Enabling Legislation or Dissembling Law? The Disability Discrimination Act 1995’ (1997) 60 MLR 64 27 Doyle, ‘Disabled Workers’ Rights, the Disability Discrimination Act and the UN Standard Rules’ (1996) 25 ILJ 1 Read More