Anti-Discrimination Policies - Coursework Example

Anti-Discrimination Policies: Its Effect Upon Carers Discrimination of any kind is akin to a plague that governments and international organizations1 have worked closely towards its eradication. Despite these joint efforts, human rights violations and civil liberties infringements remained prevalent. Indeed, equal protection2 in law and against discrimination is a Utopian principle which, in reality, remains elusive. Discrimination occurs even in the most unlikely places such as the workplace where double standard attitude is still common and rampant. This prompted governments and international organizations3 to revisit laws and policies to curb its proliferation. The recognition of the most essential human rights, particularly to children4 and women5 , in legislative enactments and judicial pronouncements, is a welcomed development amongst the community of workers but employers are seemingly reluctant to fully implement as it is perceived as an intrusion of its management prerogative to exercise freedom of choice as well. It is argued that employers have the freedom to set the standards of employment including the criteria for selection, working conditions and other badges of employee control. The imposition of legislative enactment and its judicial interpretation of additional benefits are characterized as usurpation of employers’ prerogative. Indeed, the economic equilibrium requires a balancing act between expanding the rights of workers pursuant to the social justice principle and the rights of employers to profit as well as to retain competent and efficient workers supportive of its vision. It must therefore be recognized that in conferring rights to workers it must not entail the persecution of the employers. This paper aims to show that the expanded benefits and recognition of the workers’ rights is not detrimental to the employers as contented and happy workforce is more conscientious and productive which ultimately translates to better business output and profit. For this purpose, the employment condition of a working carer shall be examined not only for the legal controversy it generates but its social and economic implications as well. This issue has spawned debates warranting a closer scrutiny on whether the present laws and policies are sufficient to protect and promote the interest of the working carers. The backdrop for the discussion shall be the lawsuit lodged by Ms. C against her London law firm employer who allegedly harassed her out of her job for requesting time off to care for her severely disabled son. It is claimed that the employer’s act is discriminatory which constitutes as automatically unfair ground for termination. This paper shall discuss the grounds upon which the petition may be sustained and if warranted, to make recommendations to enhance the protection accorded the workings carers. The ruling of the European Court of Justice (ECJ) in the parallel case of Coleman v. Attridge Law6 may be relevant to state in the determination of Ms. C’s fate. In the Coleman case, it was declared that “discrimination by association” is unlawful. Direct discrimination and harassment are prohibited notwithstanding that they are not personally directed against the disabled person. So also, the complainant alleged that her employer refused to give her the same flexible working hours accorded to her coworkers whose children were not afflicted with disability. She further asserted that abusive and insulting comments were made against her and her child when she asked for time off or modified working hours which had not happened to her coworkers with non-disabled children. The employer denied the allegations and averred that the complaint is untenable as the Disability Discrimination Act 1995 (DDA) is limited to discriminatory and harassment acts directed against the disabled person. However, the European Framework Employment Directive (EFED) as well as the Employment Appeal Tribunal (EAT) supports the view that claims of discrimination may be asserted by people associated with the person with disability. The ECJ held that the proscription against direct discrimination is not confined to the people with disability. It extends to unwanted conduct amounting to harassment and less favorable treatment of an employee based on the disabled condition of the child. It was likewise ruled that harassment is considered discriminatory when unwanted conduct is intended to denigrate the person under intimidating, hostile, degrading, humiliating or offensive environment. The EFED was liberally construed to avert discrimination by reason of disability. The equal treatment edict enshrined in the EFED refers to the grounds and not to specific classification of persons. Thus, the protection against discrimination and harassment extends to those associated with the disabled since such person’s assimilation is similarly affected. Although the decision of the ECJ favored the complainant, the judgment was appealed by the employer hence there is no final disposition of the case as yet. It is clearly shown however that what is frowned upon is the denial or withholding of the same privilege from a worker whose child is disabled while a more favorable treatment is given another worker whose child is not disabled. Discrimination occurs when biased or unfair treatment is bestowed upon another. Thus when employers do not act on the working carers request for time off or leave of absence to take care of the disabled child, it withheld opportunity which is ordinarily given to others working carers. It is undeniable that both working carers were treated in an iniquitous and arbitrary manner. While the working carers are not afflicted with disability but the treatment they received on account of their disabled children falls within the protective ambit of the equality treatment. Thus redress may be sought for the employer’s capricious conduct. However, if the termination is due to illness, the employee cannot implore judicial succor as illness does not fall under the disability category. This finds support in Navas v. Eurest Colectividades SA7. The ECJ decreed that termination due to illness is not discriminatory as sickness implies a temporary condition which does not affect the performance or competence of the employee. Disability connotes physical, mental and psychological limitations or impairments that hinder the participation of the concerned person in professional life7. A disable person cannot function independently and requires assistance to attend to personal necessities, hence ECJ rejected the view that “disability” and “sickness” refer to one and the same condition7. It cannot be denied that the DDA, EFED and other similar legislations are social policies intended to uplift the station of workers. The ideals envisioned by the social legislations are to create equal opportunities among workers of comparable situations to enhance their welfare and development. Pursuant to its mandate to promote public interest, the United Kingdom Government conferred additional privileges8 to working parents who have rendered at least one year continuous service with an employer regardless of status whether fulltime or part-time. Accordingly, the parental privilege is statutorily mandated thus parents may not be conferred lesser rights. The employer however is not precluded, should the employer so desire, to bestow upon its employees more privilege or benefits but certainly, it cannot diminish the privilege conferred by law. And as parental leave is mandated by law, the employer has no right or authority to prevent the free exercise of such right. Any attempt on the part of the employer to unduly intervene may be brought before the Employment Tribunal. Ms. C’s dilemma may likewise be resolved under the landmark legislation otherwise known as the Equality Act 2010 (Act). It incorporates within its protective mantle indirect discrimination which was not taken cognizance of in the earlier Coleman case. Presently, any act or practice which creates an uneven treatment between people of similar situation shall be presumed guilty of discrimination. However, this presumption may be overcome by evidence that reasonable classification and fair means were employed in arriving at a particular decision. It is therefore imperative that the conditions are based on impartial and objective classification. So also, the Act provided that a person is given added protection if associated with a person with disability this is known as the discrimination by association. An employer may be held culpable for discrimination if an employee is treated unjustly or differently by reason of the employee’s association with a person. It is likewise proscribed to discriminate and harassed an employee who is erroneously believed to be disabled. Though the Act gives ample equality protection such right is not absolute, there may be instances when uneven treatment may be justified. This is best exemplified when an employee has a disabled child is treated differently. The variation in the treatment is valid if it can be shown that lawful means were implemented to pursue a valid purpose. The right to livelihood should not equally be denied an employee thus the facility to access employment and favorable working conditions must be accorded. All employees must be treated equal and laws authorizing different treatment should be invalidated for being contrary to law and public policy. It is beyond cavil that the subject of discrimination is the weak, elderly, poor and underprivileged. Women are perceived as the weaker sex thus laws should provide them safe and healthy working conditions taking into account their maternal nature as well as provide adequate facility for the elderly to enable them to live independently. The women, children and the elderly are segments of society which need more protection as they are more often the targets of discrimination. With respect to the working carers, an employer must to accommodate the working carers who care for a disabled child, the sick and the elderly. The Act commands the employers to implement modifications or changes in the working pattern or schedule of a working carer. The employer cannot refuse the work adjustment requested by a working carer as it is construed as unfair or unequal treatment thus unlawful and discriminatory. If a worker demands a flexible time, the employer is mandated to accommodate the request in accordance with the operation of its business. If the demands of the employee are not reasonable then it can be validly refused. Flexible working may entail working at home, putting in additional hours to the normal working hours, job sharing and other similar arrangements which would lessen the working carer’s burden (ACAS, 2010). Thus, reasonable accommodation should be provided to guarantee compliance with the equal treatment principle in relation to persons who care for people with disabilities. This presupposes that employers must take appropriate measures to enable working carers to have access to, participate in, or advance in employment through flexible working hours or other remedial measures. Employers must be reminded that it is sound business strategy to help a working carer. According to the ACAS guidelines, working carers who are given the opportunity to work as their schedule permit them tend to be more loyal and over-compensate by working doubly hard and more efficient. The working carers as they are allowed to work in their own time thrive better and flourish in their careers as the pressure is eased off by simply accommodating the schedule they requested. The objective of the Act is not to oppress the employer and it is expected to approve all flexible time requests if it is detrimental to its business. It is sufficient that measures are implemented to assist them. And, in the event that the employee disagrees with the decision of the employer, then recourse may be taken before the employment tribunal for discrimination. In order to justify a complaint for discrimination before the employment tribunal, the procedural requirements must be complied with otherwise the employees may lose the right to seek redress. Although the right to sue an erring employer accrues upon the commission of the grievous act, the employment tribunal is only empowered to award adequate compensation by way of damages but it may be powerless to order reinstatement or return to work. The Act is an inadequate vehicle towards uplifting the lives of the working carers as the approval of the time off or flexible working schedule is left at the discretion of the employer. Under this scenario, the working carer is left at the mercy of the employer and the decision may be subject to the whim and caprice of the employer. In order to aid the employee in need, the Act must make it mandatory for the employer to approve request for time off or flexible working schedule upon presentation of proof of entitlement that the employee has a child, an elderly or a sick relative to care for. The approval should be automatic since it becomes an avenue of abuse for the employers. In fact, employers exercise this power to bend the will of the working carer as caring for a child, sick and elderly requires expense which the working carer may not have. The working carer may then be forced to accept benefit dole-outs due to desperate needs although such benefit is statutorily provided. Provisions to obviate these abuses should be considered for the benefit of all concerned. Another issue which social legislations must address is the declining resources set aside by the government for the care of the elderly despite the marked increase in the elderly population. The elderly sector is probably the most neglected segment of society as funds for social services are on steady decline. The government needs to recognize that the elderly had paid their dues in society who must be taken cared of with the dignity they deserve. However, the dwindling resources provided by the government to the elderly make it impossible to give adequate and dignified care. The government must therefore reaffirm its commitment to deliver adequate basic social services to the elderly as well as give financial aid and other resources to the carers albeit they are members of the elder’s family if they provide care to the elderly. It must be noted that members of the elderly’s family are compelled to give up work or accept less favorable working condition to accommodate caring for the elderly family to save on expense. Alternative livelihood must be provided so that the carer would remain productive despite staying at home. The financial aid facility given to the elder’s carer is practical and less expensive for the government not to mention that the elderly will thrive better in a home provided by a loving and caring family rather the unfamiliar and almost clinical treatment they received from the nursing homes. It must be ensured that elder’s carer is provided ample resources to make sure that the dignity of the ward is guaranteed. It is likewise recommended that employees should be required to contribute to a fund which shall be managed by the government and the proceeds of which shall be used in the care and maintenance of employee after retirement. In this manner, the elderly will not be subjected to a degrading treatment as they age. The rationale for such arrangement is to ensure the equal applicability of the proceeds towards the betterment of the employee after retirement. Members of the family should not be forced, on account of necessity, to care for their elderly in their homes as it may entail a lot of patience not to mention that it is emotionally taxing especially if the elderly is afflicted with a debilitating disease such as Alzheimer’s and other similar ailments of which the family member may not have the proper training to cope. Thus, it is imperative that an application of the retirement fund is such that these considerations shall be met. Bibliography Care Quality Commission. [online] Available from http://www.cqc.org.uk/ [Accessed 5 March 2011] Carersuk. The Voice of the Carers. [online] Available from http://www.carersuk.org/Newsandcampaigns/Ourcampaigns [Accessed 5 March 2011] Coleman vs. Attridge Law. 2008. Case C-303/06. [online] Available from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0303:EN:HTML [Accessed 5 March 2011] Council of Europe. European Convention for the Protection of Human Rights and Fundamental Freedoms. 1953. [online] Available from http://conventions.coe.int/treaty/en/Treaties/Html/005.htm [Accessed 5 March 2011] Database of Labour Legislation. Convention No 111 of the International Labour Organisation. 1958. [online] Available from http://www.ilocarib.org.tt/projects/cariblex/conventions_5.shtml [Accessed 5 March 2011] Eurlex. European Framework Employment Directive. 2000. [online] Available from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML [Accessed 5 March 2011] Navas v. Eurest Colectividades SA. [2007] All ER (EC) 59. [online] Available from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0013:EN:HTML [Accessed 5 March 2011] Social Care Institute for Excellence. Better Knowledge for Better Practice. [online] Available from http://www.scie.org.uk/index.asp [Accessed 5 March 2011] Unicef. Convention on the Rights of the Child. 1989. [online] Available from http://www2.ohchr.org/english/law/crc.htm [Accessed 5 March 2011] United Kingdom. ACAS. Flexible Working and Work-Life Balance. 2010. [online] Available from http://www.acas.org.uk/index.aspx?articleid=1283 [Accessed 5 March 2011] United Kingdom. Carers (Equal Opportunities) Act 2004. 2004 c.15. [online] Available from http://www.legislation.gov.uk/ukpga/2004/15/introduction/enacted [Accessed 5 March 2011] United Kingdom. Employment Tribunal. Commotion Ltd v. Rutty [2005] UKEAT 0418_05_1310. [online] Available from http://www.bailii.org/uk/cases/UKEAT/2005/0418_05_1310.html [Accessed 5 March 2011] United Kingdom. Equality Act 2010. 2010 c.15. [online] Available from http://www.legislation.gov.uk/ukpga/2010/15/introduction/enacted [Accessed 5 March 2011] United Kingdom. Work and Families Act. 2006. [online] Available from http://www.legislation.gov.uk/ukpga/2006/18/contents [Accessed 5 March 2011] United Nations. Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. 1994. [online] Available from http://www.hrweb.org/legal/escr.html [Accessed 5 March 2011] United Nations. Division for the Advancement of Women. Convention on the Elimination of All Forms of Discrimination against Women. 1979. [online] Available from http://www.un.org/womenwatch/daw/cedaw/cedaw.htm [Accessed 5 March 2011] United Nations. Universal Declaration of Human Rights. 1948. [online] Available from http://www.un.org/en/documents/udhr/index.shtml [Accessed 5 March 2011] Read More