A Critical Analysis of the Equality Act - Essay Example

EQUALITY ACT (2010)

Introduction

Equality by definition is the right of various people in society to have access to the same services and be treated equally. There are many types of equality. It may be racial equality, where individuals from different races are entitled to services without discrimination, it may also be equality of the sexes, where women are entitled to the same treatment as men. Equality is not the same as equity although they are closely linked (Deutsch, 1975, p.141)

The equality act is a law enacted in the year 2010. It aimed at protecting people from discrimination, which occurs either in the workplace or in society. It officially came into use on the 5th of April, the year 2011. (Act, 2010, p.3) The law is an amalgamation of nine laws which were depended on previously. Among these are the employment equality regulations of 2003- relating to religion matters, sex discriminations Act of 1975, the Act tackling disability discrimination created in 1995 and the Equality Act of 2006. As a whole, the Act simplified Britain’s discrimination legislation by centralizing the major aspects that affect equality in the country, thus resulting in a stronger, understandable anti-discrimination edict. “When harmonization, simplification, and modernization of the equality law is achieved, then the equality act of 2010 will have achieved its aim” (Hepple, 2010 p.12).The law was enforced on 1st October 2010.

People subjected to any form of discrimination before that year were essentially protected by the previous legislation that was in place at the time. The Equality Act 2010 covers other forms of discrimination such as those regarding age, sex, sexual orientation, disability, race, pregnancy, religion, and marriage. It covers all areas of Great Britain apart from Northern Ireland, which has devolved powers when it comes to discrimination issues. The Act protects citizens from discrimination at work, at school, as a buyer, a member or guest of a private club or association (Hepple, 2010 p.13).

In a nutshell, the Equality Act 2010 gives discrimination-related guidance to various stakeholders such as students and teachers, employees and employers, service providers and the users of the services etcetera. The legislation insists that there must be no hierarchy in matters to do with equality. That fact, in essence, brings to the fore the concept that in the eyes of the law, all are equal and that this law must be applied to all without discrimination unless there’s sufficient and incontestable reason and truth to justify an exception. The Act, though not perfect, has been hailed and seen as a great achievement especially because it’s a result of generations of equality legislation in Great Britain. At the workplace, the law has acted as a compass to direct employers and employees in their day to day conduct. It has served to minimise conflict and create harmony between the two crucial groups, thus improving productivity. In other sectors of society, the Equality Act has helped lessen the friction between ideologies and groups, which is a blessing in more ways than one. (Hepple, 2010 p.11)

To help understand and appreciate the great success that is the Equality Act, one must have a grasp of the metamorphosis of equality legislation in Great Britain. This understanding can be achieved by comprehending some of the changes to legislation constituted into the Act. They include:

Incorporation of Positive Action

Positive action refers to affirmative acts done by one to another with the aim of promoting an anti-discrimination culture. The Act permits employers to bring down barriers that could prevent people from being employed or from progressing within their organization owing to whatever factors. Employers are also allowed to favor a candidate who is in the under-represented group in the case where such a candidate is up for employment or promotion.

Extension of the Powers of Employment Tribunals

Employment tribunals now have the powers to urge or recommend that an employer should take sufficient steps to alleviate the effect discrimination may have on employees. For example, the tribunal might require an employer to conduct a seminar to train employees on the disadvantages of various types of discrimination. (Eyer, 2011, p.1275)

The Discrimination of Disabled People.

Various changes pertaining discrimination against disabled people were put in place. These include the provision that questions regarding health before employment would be regarded unlawful unless where there were sufficient grounds for asking them. Perceptive discrimination, i.e., discriminating others based on perception would qualify as discrimination. Indirect discrimination, i.e., where policy is enforced on a group of people, but it hurts all would also qualify as discrimination. Also qualifying as discrimination, is associative discrimination, i.e., discriminating someone for being associated with a member of a protected group, e.g., being gay. Discriminating someone for a disability is therefore forbidden and in no way acceptable. (Eyer, 2011, p.1275). Transgender people must be safeguarded from discrimination even where not under medical supervision.

The Roles of Employers.

These have largely been increased. Employers are now required to become role models by promoting equality and demonstrating that they have achieved equality in their workforces. Employers will be subject to the guidance of ministers in a bid to achieve equality. As of April 2011, the retirement age of 65 was abolished. Employees can no longer be subjected to compulsory retirement unless there’s sufficient reason to do so. Breastfeeding mothers are protected from unfavorable treatment at schools and other service providing places. This legislation applies up to 26 weeks of pregnancy.

Potential Problems of the Equality Act

The Act in its entirety does not mention descent. It also fails to cover caregivers. According to the Act, Age discrimination is still allowed so long as there are reasonable grounds. This kind of mentality is wrong since some members of the organization would take advantage of this oversight. Children are not protected against age discrimination, yet it is an issue that is on the rise. There is a shortage, and in some cases absence of adequate case laws and precedents to guide the court on the way forward in emerging issues. (Act, 2010)

Supporting Case Laws

One case law that shows discrimination in its light is Scott v Thomas Cook Tour Operations, in this case, a woman, Mrs. Scot was denied a chance to attend to her disabled husband during a flight. As a result, she took care of his catheter while on her knees in the aisle. The act left her greatly humiliated and distressed. The Supreme Court’s decision after the case was heard was that the Montreal convention barred compensation. The court said, however that the convention should be amended to take into account modern equality laws. (Koning, 2014, p.773)

Although Mrs. Scott’s experience was certainly upsetting and dehumanizing, unfortunately, since the Equality Act does not accommodate her as a caregiver, she did not find justice in a court of law. Not only is this a loophole to discrimination, but it is also a frustrating fuel which ends up affecting both the sick man and his wife. It frustrates all efforts in the search for equality and as a result, brings about direct and indirect discrimination to both the carer and the person with protected characteristics. (Koning, 2014, p.775)

The government unfairly refused to give protection to caregivers. They argued that caregiving is not a status, and it is also protected by other legislation in detail.

They pointed out the Act allowing caregivers flexible working arrangements and permission to take time off. These small mercies may address them, but in no way does the Act completely cover the plights of these people (Hepple, 2010 p.12). In doing so, the government frustrated its said desire to attain equality for all. Caregivers are discriminated against yet they play a crucial role in the lives of the persons with protected characteristics. This loophole should be amended in future to prevent further discrimination and double standards.

Although the term carer is not a status, it is as essential as the person with protected characteristics. It must be noted that discrimination should not be tolerable by any means. Loopholes such as failure to cover caregivers open a can of worms and lead to the tolerance of discriminatory tendencies at workplaces and in the society (Lawsocietyorguk, 2017). If and when a caregiver is discriminated, then the person with protected characteristics becomes vulnerable and is open to discrimination. The unforeseen loophole creates a culture in which despite the Equality Act 2010 being in place; all caution is thrown to the wind and discrimination takes the forefront. Failure to recognize caregivers by the Equality Act 2010 amounts to indirect discrimination against such people, e.g., people with disabilities. No law should have such an immense loophole as to frustrate the very purpose for which it was put in place. The law should be tolerant to all those it covers and those who spend priceless time safeguarding these persons against harm and discrimination. (Kelly, 2005, p.357)

If these weaknesses are rectified, it will help create a society where everyone seeks and grants equality, thus warding off any form of discrimination. The Act should accommodate not only these caregivers but also those not mentioned in the law, such as, children who are not protected against age discrimination as well as people of all descents since Great Britain is now a cosmopolitan society. By doing so, the Equality Act will become Europe’s strongest anti-discrimination law. Organisations must implement measures and adjust policies to ensure compliance with the Equality Act. Any procedures adopted must also comply with the law.

Employers in organizations should encourage positive action by removing all barriers that could hamper persons with special characteristics from being employed or from climbing the corporate ladder. Removal of these barriers will help encourage a culture of equality in the organization. The removal will extend to the organization putting in place measures to favor a candidate incase they’re a person with special characteristics. 

In Swansea University Pension and Assurance Scheme v. Williams (EAT) the court held that it is illegal to discriminate against a disabled person because of the said disability. Section 15 of the Equality Act 2010 prohibits the same. A good example is seen in Griffiths v. Secretary of State for Action and Pension. In its ruling, the court of appeal held that dismissal of an employee, citing absence triggered by their disability could constitute discrimination arising from disability. (University of Sheffield, 2017)

The organization should work to ensure that there’s no discrimination or any victimization as seen in Horter v. Chief Constable of South Wales Police. The department of police had not made reasonable adjustments for an officer rendered unable to perform frontline duties owing to an injury. The service was found in contravention of Section 20 which details the responsibility of employers to make due adjustments that will favor a disabled person in case of a disadvantage. (McBeth, Nolan, and Rice 2011)

The organization should ensure that no employee harasses another and no employer harasses an employee and vice versa. (Eyer, 2011, p.1275). According to the precincts of the Equality Act, section 26, unbecoming behavior about a characteristic that is protected by the law, which has the purpose and ability to degrade another is illegal and punishable in the eyes of the law. In Hurley and others v Secretary of State for Work and Pensions, it was held that the defendant discriminated against unpaid caregivers because of their failure to exempt the caregivers from the Benefits Cap (Act, 2010). Organizations are also obliged to promote good relations between persons who have relevant characteristics and others in their midst who may not foster togetherness and understanding.

Section 27 of the Act is the one that deals with victimization. The organization should by all means possible uphold fairness and avoid victimizing any employee regardless of age, sex, race, stature, etc (Nottinghamacuk, 2017). In Mr. and Mrs. Chandhok v Ms. P Tirkey, the defendant won by convincing the court that her social class was an issue in the way the respondents looked at her (section 4). The organization should also try and meet the needs of persons with protected characteristics that that differ from those of persons who do not work. For example in Paulley v First Group, the Supreme Court ruled that bus companies should go the extra mile in providing for the needs of wheelchair users, that is, make enough space for them and train drivers on how to remove any barriers that halt the movement of wheelchairs. In the dismissal of a disabled person, employers must think first about the employee’s destination 1.e. next suitable employment. (Eyer, 2011, p.1275). This directive is under (Section 6), and it is meant to ensure that the employee has a bright future because it involves putting into consideration the fact that the employee may need further training to be suitable for that next employment.

Conclusion

The Equality Act 2010 has gone a long way in ensuring equality in Great Britain. Employers can use the legislation as a guideline in setting up policies to expel discrimination, harassment, victimisation and all other misconducts as per the Act. In addition to that, the Act has helped govern employee to employee relations as well as employee-employer relations (Act, 2010). By doing so, it, in essence, has helped create a good environment where work thrives and as a result, productivity is high. Although the Act has loopholes, some of which disappoint the very principles it stands for, it largely attains its purpose and acts as a buttress to all and sundry especially in the workplace.