Equality Act 2010, Exceptions for Discrimination - Essay Example

? Equality Act Introduction The Equality Act intends to streamline and harmonize preexisting legislation on discrimination and equality. The Act introduces changes to this legislation and further integrates these provisions into one Act. The Act provides that an employer need not treat an employee, a former employee, or a job applicant, worse than any other person due to a protected characteristic thereto considered as direct discrimination needs. In this regard, the Act provides that in a situation of maternity or pregnancy, this direct discrimination can arise simply if the individual has the characteristic considered protected without the need to compare such treatment to other individuals. In essence, therefore, the Act stipulates that an employer should not do things that would pose terse consequences on an employee, a job applicant, or previous employee or other persons who have protected characteristics than on individuals who do not possess that characteristic. On the other hand, the employer can demonstrate that the act or treatment is objectively necessary in which case the same qualifies as indirect discrimination as per the Act. In this case, an employer need not treat an employee, a disabled applicant, or a former employee unfavorably due to something associated with their disability where such treatment cannot be objectively justified. This treatment includes making decisions, the application of rules or the manner of doing things. Nevertheless, this only applies in circumstances where the employer knew or ought to have reasonably known that the individual is a disabled person and thereto referred as discrimination arising from disability. Additionally an employer should not treat an applicant, an employee, or a former employee worse because of association with an individual with characteristics considered protected. The treatment by the employer should not reflect on the employer’s perceptions or the associative characteristics of the employee. accordingly discrimination by perspective implies that an employer must not treat an employee, a job applicant, or former employee unfairly or victimize the employee since the employee has made complains about discrimination or assisted other individuals make complains or have done acts to sustain their own or other persons equality law rights. These provisions on perception, association, and victimization apply to anyone, irrespective of whether they possess protected characteristics. The act forbids an employer from harassing an applicant, an employee, or a former employee. In addition, and in ensuring that a disabled individual has equal access, in as far as, it is realistic, to anything that involves doing work as a non-disabled individual; an employer should make reasonable modifications (Barry 2010). In a situation where an employer evaluates a disabled individual’s application for fitness for work, the employer must take into account any reasonable changes necessary to facilitate the job. If, after making reasonable adjustments, the disabled individual is not the best applicant for the work; an employer should not employ the individual work. However, where such an individual would be the best applicant with reasonable changes in place, then an employer must employ the individual. The consideration for reasonable changes also applies where an employee becomes disabled while employed or where their needs change or even, where they change to another role. Exceptions for discrimination Occasionally there are instances where the law on equality applies in a different way and this implies exceptions to these rules, these exceptions relate to all employers or those, which only apply to particular employers. Additionally the law on equality permits an employer to accord better treatment of disabled people than to non-disabled individuals and to use positive action. Age The Act provides that age is unlike other protected features and where an employer can demonstrate the treatment to be objectively justified, the employer can make a decision founded on an individual’s age, even if the same would otherwise result in direct discrimination. Nevertheless, it is extremely uncommon to justify objectively direct age discrimination this this respect. This implies that employers should be cautious not to use stereotypes concerning an applicant’s age in making decisions on their suitability or capability to do a job. The two are instances of discrimination on age, which a prospective employer would face challenges in justifying objectively. Occupational requirements Where an employer can demonstrate that a protected characteristic is crucial to a job, the employer can insist that only an individual with that protected characteristic is appropriate for the job. National security The employer can put into consideration individuals protected characteristic if there is the need to protect national security, and where such discrimination proportionately necessary. Exceptions applicable to some employers In circumstances where the employer ascribes to a religion or belief that employer can be able to assert that a job necessitates an individual doing the job to ascribe to a certain religion or belief. If the work is for the purposes of a religion, then an employer can justify that the job or role requires an individual to have or to lack a particular protected characteristic. However, such justification only suffices where a job or function exists for religious purposes, for instance being a minister, representing, or promoting the religion. The same also applies where the nature or circumstances of the job is essential to avoid a conflict with held religious beliefs of a substantial number of the followers of that religion or otherwise to conform to the principles of the religion by relating a requirement to the role or job. In the circumstances an employer may decline to employ, an individual based their gender, sexual orientation, marital status, respective spouses. Nonetheless, this exception only applies to limited posts, for instance a minister of religion. It is also critical that such a requirement be of a proportionate manner of attaining these aims. An employment service provider can claim that a person must possess a protected characteristic to perform vocational training, where such training results in work for which that features are prerequisites to the occupation. On the other hand, an educational establishment, for instance a college or a school may assert that an individual has to ascribe to a certain belief or religion, or the individual must be female. Additionally recruitment to the diplomatic, civil, security, armed, intelligence and other public bodies can make specifics on the nationality of an individual. Moreover, recruitment to the army may exclude female applicants and transsexual individuals where this exclusion is a proportionate in ensuring the effectiveness of combat. In addition, disability and age are not protected characteristics concerning service in the army. Disability can also exclude an individual from serving in the army. Positive action This implies the methods that the employer can adopt in order to encourage individuals from a group facing a disadvantage. For instance, where candidates are similarly qualified, it is probable to employ an applicant having a protected characteristic if the employer reasonably believes a group to be underprivileged or under-represented among the employees or if the contribution of such a group in an activity seems disproportionately lacking. This also applies where there is low participation in taking up employment opportunities. This provision in the Equality law permits an employer to aim opportunities at a particular group (Alex 2011). It is noteworthy that positive action is not similar to positive discrimination, which Equality Act does not provide for. Additionally the Equality Act permits an employer to accord more favorable treatment to a disabled individual as compared to a non-disabled individual. This provision takes into account the additional obstacles to work that the disabled individuals face. Application of Equality Act 2010 The Act considers an employer as an individual rendering decisions on operations and conduct in the work place. The Act covers most employment situations even where the employer does not provide their employee a written employment contract and includes contract workers. The provisions of the Act also cover the recruitment of people to other positions for instance apprentices, trainees, and business partners. This therefore implies that another person employed by the employer binds an employer legally accountable for unlawful discrimination, harassment, or victimization even as an act of other individuals. This also applies to individuals executing instructions on the employer’s behalf such as agents and applies irrespective of the execution of the instructions. Recruitment The act stipulates that employers must desist from direct and indirect discrimination, harassment, discrimination on disability, and victimization in all recruitment aspects. The employers must also make realistic modifications to suit disabled people. It is also upon the employers to take positive action before the advertising to encourage individuals from disadvantage groups or from a group with little involvement to make applications for employment. Health and disability In respect to health and disability, the Act forbids the employer from asking the employee questions about their disability or health unless in very restricted scenarios or purposes. Questions on the health and disability of the employee can only be asked once the employee is employed or where such an individual is included among prospective applicants for the job. This limitation includes asking such questions during the application process or in respect to an interview. It also extends to questionnaires about health before a job offers. Prior sickness and absence in relation to health or disability The act also stipulates that no other person can inquire these issues on the employer’s behalf. This prohibits an employer from referring an individual to a professional health physician or requiring an individual to fill out a questionnaire provided by such a practitioner prior to the employer making an offer for the job except for very limited circumstances. The essence of prohibiting an employer from raising such pertinent issues ensures that all the job applicants are assessed on the ability do the work , and not ruled out on issues relating to or rising from the applicants health or disability (Jesse and Ronald 2010). These previous health or disability conditions and sickness absence may not reflect on the applicant’s ability to perform the current job. At the stage where the employer has made a job offer to an applicant or where the applicant is included in the pool of prospective employees the employer can ask these questions to ensure that, the applicant’s health or their disability would not preclude them from performance. Nevertheless, the employer must consider if there are practical adjustments that would facilitate these individuals to do the job. An employer can only ask questions relating to health or disability where such questions aim at establishing reasonable adjustments for the process of recruitment for instance in respect to an interview or an assessment. An employer can also ask such questions if the employer wants to ensure that an individual who is disabled can benefit from measures focused at enhancing the employment rates of disabled persons. This notwithstanding the employers should clarify to the job applicants the reasons for asking these questions. The employers can also ask these questions in situations where having such impairment is an occupational prerequisite for a particular occupation or where the employer asks such questions with the aim of monitoring the diversity of applicants. The same also applies where the questions asked relate to a condition to evaluate applicants for purposes of national security. Additionally where the issue relates to an individual’s ability to perform a task that is fundamental to that job the employer can ask such questions. Sandra (2011) states this relates to where the employer would discern if an individual could carry out a job with reasonable modifications in place. Recruiting of pregnant women or those on maternity leave The Act envisages that an employer must not refuse employment to a woman because of pregnancy, maternity leave or because of an illness related to pregnancy. The Equality Act does not provide that a woman making a job application should to inform the employer of her pregnancy. This stems on the understanding that an employer must not make decisions on whether to or not to employ the applicant based on pregnancy but employment should be based on the ability to do the work. Where an applicant does not disclose her pregnancy to the employer and she becomes employed subsequently, the employer cannot dismiss her thereafter on the grounds of her pregnancy. Moreover, an employer cannot inquire from a woman whether she anticipates on having children, whatever the marital status, age or even if she thinks it is pregnant. According to BooksLlc (2010), this factor is inapplicable in making decisions on the suitability of an individual to a particular job. Additionally, the Act provides that it is unlawful to regard an employee’s time of absence owing to a pregnancy or pregnancy related sickness in making employment decisions. Furthermore, this protection extends to women outside the workplace, protects them from discrimination that arising from pregnancy and maternity, and comprises students and prospective students. Employers can provide training to employees however where they do so; the employer must not discriminate against employees but should make reasonable adjustments to incorporate all employees. It is noteworthy that an employer cannot stop or refuse an individual training grounds resulting in discrimination based on pregnancy, maternity sickness or absence unless the employer can justify the risk on the employee’safety. Furthermore, an employer has a duty to provide appropriate rest facilities for breastfeeding employees. Working hours, flexible working time, and time off The Act stipulates that employers should avoid both indirect and direct discrimination, victimization and harassment in deciding the working hours of an employee, or whether to permit the employee’s flexible working time and when to permit the employee’s time off. The Act provides that employees must make reasonable changes for disabled individuals and put into consideration requests for changes to working hours or provide flexible working based on relationship with protected characteristics. However, the obligation to make realistic adjustments to remove hurdles for disabled people do not extend to non-disabled individuals who need modifications to care for a disabled person they is associated. Such individuals qualify as careers and are entitled to the right to apply for flexible working hours after remaining employed for a while. The individuals protected characteristic with whom an employee is associated might be appropriate if the employer bases a decision on that protected characteristic. It is noteworthy that some religions or beliefs require their followers to attend to prayers at particular times during the day, or further require an individual to have completed work by a certain time. In circumstances where an employer applies a principle that contradicts with this requirement, then the employer needs to justify objectively that principle or otherwise it results in indirect discrimination based on religion or belief (Rob 2012). Changes to working hours or flexible hours of work David et al. (2011) provides that where a proposal for flexible working hours is made based on the employee undergoing, deemed to experience or has experienced gender reassignment, then the employer should determine the application on the same grounds as other as other requests not made on the right to demand flexible working hours. The equality act requires employers not decline a request from an employee or treat such a request with less seriousness because the employee making the request is transsexual. A credible approach in avoiding discrimination by the employer in light of these circumstances is to provide a procedure that does not focus on the reasons the employee is seeking flexible working hours. The procedure must put into consideration the productivity of such an employee after the changes. Time off for sickness The importance of time taken off by an employee to the employer is that it is used to determine the basis for promotion, bonuses, redundancy, and references. The concept of the Equality Act is that where an employer considers time off by a disabled individual, which relates to the disability in the same manner they treat absence due to sickness taken by a non-disabled employee, this result in discrimination. This is because the disabled employee is treated worse than a non-disabled employee because of a factor arising from his or her disability. The Act stipulates that upon the realization of the employer that an employee comes within the classification of a disabled person, then the employee should avoid indirect or direct discrimination based on discrimination connected to disability or disability, (Janice 2013). The employer therefore must ensure that they have adhered to the requirement to make practical adjustments. This includes recording disability-related time off distinctly from other general sick leave, consideration of reasonable adjustments with employees and where necessary, employs the use of an expert to figure out appropriate adjustments. Dismissal, retirement, redundancy, and post-employment It is important for employers to avoid discrimination linked to disability, direct and indirect discrimination. Other acts such as victimization, harassment in the aspects of redundancy, dismissal, and retirement should also be avoided. They employer should also make sensible adjustments for disabled individuals in light of this. Dismissal Although this essay highlights more on the equality Act, it does not comprehensively cover dismissal and only provides for dismissal based on equality. The Act stipulates that an employer should exercise additional caution where they want to dismiss a disabled employee. Where the dismissal is necessitated by the inability of the employee to further satisfy the requirements of the job then the employer needs first to consider the availability of other reasonable changes that would keep the employee able employed. Reasonable adjustments referred thereto vary widely but comprise a phased return to employment for an employee, flexible hours or part-time, modifications to the premises and availability of further equipment, extra support, and reassignment of some job elements to another employee or a transfer to another part in the organization. If it is impossible to retain the services of the disabled individual then a dismissal can be regarded as a medical retirement or an individual if there are retirement benefits for the employee such as pension (Great Britain 2011). However, the employer must also demonstrate that the dismissal can be objectively justified. Redundancy On redundancy the employer must ensure that redundancy procedures are followed and the criteria used in redundancy does not discriminate unlawfully. The Act recognizes that failure to provide reasonable adjustments to the criteria for redundancy and procedures for disabled individuals amount to unlawful discrimination and apply to both compulsory and voluntary redundancy. Retirement Requiring an employee to retire at a specific age is discrimination based on age. Under the Equality Act, the requirement of an employee to retire is direct age discrimination save where the decision can be justified objectively. Justification of such retirement follows a two-stage check where it is important portray that the employer is trying to realize a legitimate goal by the use of forced retirement, and the policy on retirement used by the employer for the work in issue is a proportionate method of attaining this goal. In some circumstances, the employer’s responsibilities continue to exist after an employee has stopped working for the employer. These situations include references and relationships where the former employee continues to receive benefits from the employer. Where this is the case, the employer must still not discriminate against the employee. Conclusion The Equality Act 2010 makes provisions that focus on several aspects of employment and contributes immensely towards the attainment of equality in the workplace. The Act also makes provisions aimed at reducing discrimination at the workplace and ensures that no employees face discriminatory practices in the workplace. The Act puts together the required guidelines for employers to treat their employees without discrimination and victimization. Reference list Alex D., 2011. Workplace Law Handbook 2011: Employment Law and Human Resources. Workplace Law Group. Barry H., 2010. Disability Discrimination and the Equality Act 2010. Journal (NewCastle, England). Books Llc, 2010. Discrimination Law in the United Kingdom: United Kingdom Employment Discrimination Law. General Books LLC. David K, Ruth H, Ruby H, John H, Ruth H, Ruby H., 2011. Business Law. Taylor & Francis. Great Britain, 2011. The Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment, and Equal Pay) Order 2011. Stationery Office. Great Britain. EHRC, 2011. Equality Act 2010: Employment Statutory Code of Practice. Renouf Publishing Company Limited. Janice N., 2013. Employment Law Statutes 2011-2012. Routledge. Jesse R. & Ronald C., 2012. Equality Act 2010. Book on Demand. Rob C., 2012. Religion, Sexual Orientation and the Equality Act 2010: Gay Bishops in the Church of England Negotiating Rights Against Discrimination. Sage publications. doi: 10.1177/0038038512451533 Sociology October 2012 vol. 46 no. 5 936-950 Sandra F., 2011. Discrimination Law. Oxford University Press. Read More