Employment and Discrimination Law - Assignment Example

EMPLOYMENT AND DISCRIMINATION LAW 2009-10s The issue in this question relates to a possible Sex Discrimination. To be eligible for sexual discrimination, there is no requirement of continuous employment. The first thing that needs to be established is that of an unlawful act. Clearly, the act of not recruiting Graham due to the reasons provided, is an unlawful act, therefore a claim can be brought forward. The next step is to decide upon the type of claim that might be pursued. The facts clearly point out that the possible claim would be of Direct Discrimination under section 1(2)(a) Sex Discrimination Act 1975. The test for establishing direct discrimination is ‘has the claimant received different and less favourable treatment on the grounds of sex/marital status?’ The test for less favourable treatment is clearly an objective one and the question that is to be asked is whether the complainant would have been treated differently more favourably had it not been for his sex. Thus, the tribunal must ask what the ‘conscious or subconscious reason for treating the claimant less favourably was’ (Nagarajan v. London Regional Transport)1. The decision of less favourable treatment is for the tribunal to decide and it is not a difficult one. In order to determine less favourable treatment, a comparison with an actual or hypothetical comparator is to be made, however it is necessary that the relevant circumstances of the complainant and the comparative group are same or not materially different. Thus, in Shamoon v Chief Constable of the Royal Ulster Constabulary2, it was stated that ‘. . . in most cases a suitable actual comparator will not be available and a hypothetical comparator will have to constitute the statutory comparator’. From s.63A and Igen v Wong3 it is clear that the evidential burden to show facts from which Employment Tribunal can conclude that the employer has committed an act of discrimination and if such burden is met then the legal burden shifts to the employer who has to show that the reason for the treatment was not related in any way with claimant’s sex. Thus, if an inadequate explanation is provided the Employment Tribunal must fina that the employer committed an act of unlawful discrimination. In the current scenario it is quite evident that Graham has received less favourable treatment on the ground of his sex and this is clear from what has been said by IRU in their reason for rejecting Graham. Furthermore, if a hypothetical comparator is drawn then in the same circumstances a woman would have received more favourable treatment and thus direct discrimination is established. The motive or intention of the employer is irrelevant if direct discrimination is established. Further, the employer does not have any defence once direct discrimination is established. The remedies that might be available to Graham are a recommendation that IRU should take action so as to reduce the effect of the discrimination. Further, he could receive compensation which could include pecuniary losses if any and injury to feelings. 2a)The possible discrimination that can be argued in this question is that of indirect sex discrimination the definition of which is provided in s.1(2)(b) of Sex Discrimination Act 1975. For the discrimination to be proved under the act, four conditions must be satisfied, that is, the respondent applies a provision, criterion or practice to both sexes; that provision puts or would put women at a particular disadvantage when compared with men; that provision puts the complainant at a disadvantage; the respondent cannot show that the provision is a proportionate way of achieving a legitimate aim. Section 3(1)(b) provides for a similar provision for married persons and civil partners. Provision, criterion or practice can be formal or informal work practice and will thereby examine practices which are not absolute requirements for the job in question (BA plc v. Starmer)4. Clearly IRU has a practice of having different timings for employees who deal with client interviews and so the part of the requirement is established. The next element requires the complainant to show that the provision is to the detriment of a group. The appropriate pool must be identified and as per Sedley LJ the pool and its identity is a ‘matter…of logic’ and so if the wrong pool is used this would be an error of law (in Allonby v Accrington and Rossendale College and Others)5. After establishing the pool for comparison, the tribunal must establish that the practice would affect the particular group when compared with the other. Thus under a claim for indirect sex discrimination the number of women at disadvantage should be compared with men. In the current situation if a claim for indirect sex discrimination is made, it is clear that since all of the employees are female, the tribunal may decide what the pool should be and if it finds that the pool is that of females with children, then they might be found to be at a disadvantage. There have been differing judgments by the House of Lords and Court of Appeal, whereby the focus has been on the advantaged group by the former and the disadvantaged group by the latter. Thus the appropriate pool would be a determining factor. The next step would be to show the Harriet has suffered a disadvantage. The House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary6 found that disadvantage can qualify, if it arises in the employment field. Harriet has clearly suffered disadvantage, as she cannot go home to her child because of the employment and this would suffice. The defence that is available to the employer is by showing that the provision is a ‘a proportionate means of achieving a legitimate aim’. This is an exercise which requires courts and tribunals to balance out between the degree of discrimination that has incurred against the aim that is to be achieved, as well as taking the surrounding circumstances into account (Cobb v Employment Secretary)7. It must be noted that even though the means used to achieve an aim which was legitimate is proportionate there could be alternatives whereby such an aim could be achieved (London Underground Ltd v Edwards)8. Finally, the question of burden of proof and when it shifts has as yet not been decided upon by the courts. Therefore, IRU can argue that the provision of such hours is necessary in order to effectively manage client interviews. However, the court would take into account other methods of achieving the aim, that is by re-scheduling client interviews and change certain aspects. Even though IRU may argue that there would be cost involved with such re-structuring, cost in itself cannot be a sufficient ground and thus the defence is more than likely to fail and therefore Harriet can claim indirect sex discrimination and the employee may be asked to change the timings as well as pay compensation. 2b)Valerie may claim parental under the Employment Rights Act 199, whereby an employee who satisfies certain conditions may take parental leave in order to take care of the child. If an employee has continuously worked for a year for an employer and has responsibility for a child, the parental leave that he is entitled to is 13 weeks’ for each child provided he is parent (named on the birth certificate) of a child born under 15th December 1999 who is under 5 years old. From the facts, it is evident that the boy is aged 4 and Valerie is the parent, therefore she is entitled to parental leave. However, the leave is unpaid and must be taken by the time the child reaches the age of 5. If Valerie is a par time worker then her parental leave will be determined in accordance with the number of days/hours which he normally works in a week. An employee must prove his entitlement to parental leave as failure would result in loss of entitlement to such leave. A request for such leave must be made at least 21 days prior to the proposed period of leave. If an employee does not give the required notice and the employer genuinely feels that the operation of business would be unduly disrupted, the request may be delayed and the employee should be informed of the decision within 7 days of request, with reasons for delay and the date on which such leave may be taken, which may not exceed 6 months and if such delay leads to the child’s 5th birthday the employee can take leave after the birthday as soon as possible. Whether 21 days notice has been served is not clear from the facts. If that is so, then IRU must grant the parental leave and if not so, it must provide the possible date on which such holidays may be taken. 3a)The problem in this question relates to a possible indirect discrimination on grounds of religion or belief. The definition of such discrimination is found in regulation 3(b) of the Religion or Belief Regulation 2003 which requires for conditions to be satisfied that is the respondent applies to employee a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as the employee; that provision, etc puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons; the provision, etc is to the complainant’s disadvantage; the respondent cannot show that the provision, etc is a proportionate means of achieving a legitimate aim. The tribunal have found the requirement to wear a veil for Muslim woman teacher not to be indirect discrimination in Azmi v Kirklees Metropolitan Borough Council9 because the treatment was justified as there was a need to effectively communicate and this was held to be a legitimate aim and was therefore a proportionate means of achieving such an aim. Further in Eweida v British Airways10, the Employment Appeal Tribunal found that a dress code which prohibited an employee to wear a visible cross was not indirect discrimination, further in this case she was offered an alternative job in which there was no requirement of a uniform, but she rejected it. Under the current situation it is quite evident that there has been a provision by IRU of wearing western hairstyles and this has put people sharing the belief as Kaya at a disadvantage when compared with other persons. Furthermore, it has put Kaya at a disadvantage when compared with other. However, the only thing that can save IRU is that the requirement of wearing such a style is because of the client base and thus is a proportionate means of achieving such an aim. The defence might be upheld by the tribunal, however alternative methods of achieving the aim and other opportunity offered to Kaya will also be taken into account when looking at the defence. b) The issue in this question relates to possible direct discrimination on grounds of sexual orientation. Such discrimination occurs if a person discriminates against another on grounds of sexual orientation he treats that person less favourably than he treats or would treat other persons. Regulation 2 of the Sexual Orientations Regulations 2003 defines orientation as including towards persons of the same sex. In Hubble v Brooks11 the employer was held liable for refusing to employ a gay man because of the thought that it would be ‘disastrous for the business’. Furthermore, the tribunal concluded that the Regulations protected straight workers as well as gay workers. Thus as explained in previous answer, there has been less favourable treatment given to Libby, even though it is under a mistaken belief, but the act applies to both straight and gay employees, therefore Libby can claim direct discrimination against IRU nd they would not have any defence. 4) The issue in this question relates to possible disability discrimination. The law on disability discrimination is governed by the Disability Discrimination act 1975. The first question that is to be asked is whether is claimant is suffering from a disability as stated in s.1 and schedule 1 which requires showing of a physical/mental impairment of long term (12 months +) which have had a substantial (Paragraph 6) adverse effect on normal day to day activities (mobility/physical coordination/eyesight) These requirements are satisfied as Alyssa clearly has a disability of eyesight which is long term and clearly has had a substantial adverse effect. Clearly this is not direct discrimination as that requires that the employee has received less favourable treatment on the grounds of his disability which requires a hypothetical or actual comparator to be shown. This is Disability related discrimination under s.3A (1) of DDA as Alyssa has received different and less favourable treatment for a reason related to her disability. The costs and condition have both effect IRU’s choice and so if they argue the defence under s.3A(1)(b) & s.3A(3) that is by showing that there was a material and substantial reason to justify the less favourable treatment (business efficacy) they can say that the costs deterred them from hiring the employee; further they would also require an additional employee to work with Alyssa, thereby going against the principle of efficacy. Therefore, the defence may succeed and IRU’s actions may be said to be justified. BIBLIOGRAPHY Selwyn, Norman M. Selwyns Law of Employment. Oxford: Oxford University Press, 2010. Print. Jefferson, Michael. Principles of Employment Law. London: Cavendish, 2000. Print Bales, Richard A, Jeffrey M. Hirsch, and Paul M. Secunda. Understanding Employment Law. Newark, NJ: LexisNexis Matthew Bender, 2007. Print. Moffatt, Jane. Employment Law. Law Society of Ireland manuals. Oxford: Oxford University Press, 2006. Print. Lockton, Deborah. Employment Law. Basingstoke: Palgrave Macmillan, 2010. Print Turner, Chris. Employment Law. Key facts. London: Hodder Arnold, 2008. Print. Holland, James A, and Stuart Burnett. Employment Law. Oxford: Oxford University Press, 2009. Print. Read More