E QUALITY AND E MPLOYMENT. L EARNING OBJECTIVES Understanding the legislative framework that governs equal opportunities in the UK Under the nature and.

EQUALITY AND EMPLOYMENT

LEARNING OBJECTIVES

Understanding the legislative framework that governs equal opportunities in the UK

Under the nature and consequences of discrimination

Distinguish between direct and indirect discrimination.

Explain harassment at work. Set out the major defences deployed by

employers in discrimination. Define the range of managerial approaches

to managing diversity

THE LEGAL FRAMEWORK (1 OF 2)

Statutes make it unlawful to discriminate on

Sex Marital status Race National origin Ethnicity Disability Sexual orientation

THE LEGAL FRAMEWORK (2 OF 2)

Statutes make it unlawful to discriminate on

Religion or belief Age Union membership or non-membership That individuals are part-time workers That individuals are fixed-term workers That individual are ex-offenders whose

convictions are spent

IMPACT OF EUROPEAN LAW

Amendments made to extend discrimination laws to comply with European directives

From 2006 UK discrimination law falls within boundaries of European competence

DISCRIMINATION ON GROUNDS OF SEXOR MARITAL STATUS

Equal Pay Act 1970

Sex Discrimination Act 1975

EQUAL PAY ACT 1970

First legislation promoting equality at work Came into force 1975 Has been amended – 1983 and 1986 Concerned with eliminating unjustifiable

differences in treatment of men and women

AMENDED ACT 1983 – TYPES OF CLAIMS

Like work

Work rated as equivalent

Work of equal value

EMPLOYER’S DEFENCE UNDER THE 1983 ACT

Results of job evaluation exercise showing differences in value of jobs

Difference in pay is justified by ‘a genuine material factor not of sex’

GENUINE MATERIAL FACTORS

Different qualifications

Performance

Seniority

Regional allowances

SEX DISCRIMINATION ACT 1975

Came into force 1975 Complements the Equal Pay Act 1970 Deals primarily with non-contractual forms of

sex discrimination Covers all workers Groups excluded include ministers of religion,

soldiers, people who work abroad Applies equally to men and women

TYPES OF CLAIMS

Direct discrimination. ExceptionsAuthenticityDecencyPersonal services

Indirect discrimination Sex or sexual harassment Victimisation

DEFINING SEXUAL HARASSMENT

European code of practice

1. Consists of unwanted conduct of a sexual nature or based on sex which affects the dignity of men and women at work

2. Can be physical or verbal in nature

3. Conduct leading to material detriment or creates an intimidating or humiliating work environment

POSITIVE SEX DISCRIMINATION

Directly or indirectly discriminating in favour of women in situations where they are underrepresented

Practice is unlawful in UK when they discriminate against men who are seeking the position and who are better qualified

DRESS CODES

Claim of sex discrimination if detriment as a result of the condition being imposed

Treating members of the two sexes differently is not sufficient

Standard of conventionality

TRANSSEXUALS

Unlawful to discriminate on the grounds that someone is a medically defined transsexual

Rights protected by Sex Discrimination (Gender Reassignment) Regulations 1999

RACE DISCRIMINATION

Governed by Race Relations Act 1976 and amendments

Applies to all workers except those recruited to work overseas or in private households

Direct and indirect discrimination applies Victimisation, positive discrimination and

harassment also apply Embraces notions of nationality and ethnic

and national origin

DEFINITION OF ETHNICITY

Long history of which the group is conscious Cultural tradition of its own Common geographical origin Common language Common literature Common religion Being a minority or being an oppressed group

within a larger community

DISABILITY DISCRIMINATION LAWS

Disability Discrimination Act 1995 replaced Disabled Persons (Employment) Act 1944

Commission for Equality and Human Rights (like sex and race issues)

Became a field of European competence in 2006

DISABILITY DISCRIMINATION – KEY PRINCIPLES

Prevention of discriminating against an individual worker or applicant who suffers from a disability

Lawful to list ‘good record of health’ as a desirable characteristic

Employers should not use language in advertisements that could deter disabled people

MAKING A DISTINCTIONFAVOURABLE AND UNFAVOURABLE TREATMENT

Less favourable treatment because person is disabled: no defence

Less favourable for a reason related to their disability is permitted if no reasonable adjustment is possible

ISSUES TAKEN INTO ACCOUNT BY COURTS

What does and what does not constitute a disability for the purposes of the act?

What is and what is not a reasonable adjustment for employers to make to accommodate disabled people?

ANSWERING THE ISSUES (1 OF 2)

Someone is disabled – they have a physical or mental impairment that has a substantial and long- term adverse effect on their ability to carry out normal day-to-day activities

ANSWERING THE ISSUES (2 OF 2)

It is expected that employers consider making adjustments to the physical working environment and practices

Requirement to permit disabled people to have a greater amount of sick leave

POSSIBLE OUTCOMES FROM DISABILITY DISCRIMINATION CLAIMS

1. Tribunal issues a declaration affirming complainant’s rights

2. Tribunal makes recommendations

3. Tribunal makes a compensatory award

DISCRIMINATION ON GROUNDS OF SEXUAL ORIENTATION

Workers governed by Equality (Sexual Orientation) Regulations 2003

Protect from discrimination on grounds of sexual orientation

Some aspects of these regulations are controversial

Claims can be brought for direct and indirect discrimination, harassment and victimisation

DEFINITION OF SEXUAL ORIENTATION

It is defined as ‘a sexual orientation towards a person of the same sex, persons of the opposite sex, or persons of the same and opposite sex’

Discrimination is permissible if there is a ‘genuine occupational requirement’Counselling/support services related to sexual

mattersSome roles in religious organisations

DISCRIMINATION ON GROUNDS OFRELIGION OR BELIEF

The Employment Equality (Religion and Belief) Regulations came into force Dec 2003

Structure and content same as for sexual orientation

Some practical issues are different

DEFINITION OF RELIGION OR BELIEF

It is defined as ‘Any religion, religious belief or similar philosophical belief’Evidence of collective worshipA clear belief systemProfound belief affecting way of life or view of

the worldPermitted with genuine occupational

requirement (GOR)

AGE DISCRIMINATION LAW

Element of EU’s Equal Treatment Directive Implemented in October 2006 and December

2006 Follows same approach established for other

types of discrimination law Goes beyond employment realm Defence of objective justification

EXCEPTIONAL CIRCUMSTANCES

Allow discrimination if:Health, safety and welfareFacilitation of employment planningEncouraging or rewarding loyaltyThe need for a reasonable period for

employment prior to retirement

MANDATORY RETIREMENT (1 OF 2)

Biggest issue Potentially fair reason for dismissal: employers

permitted to mandatorily retire someone at the age of 65 or later provided a standard procedure has been followed first

Write to employee at least 6 months prior to retirement informing them of their right to request an extension of their contract beyond that date

MANDATORY RETIREMENT (2 OF 2)

Employees can make a formal request

Employer must give full consideration in good faith

Debate over whether this requires reasons for refusal to be given

TRADE UNION DISCRIMINATION

Freedom to join a trade union and take part in its activities seen as a fundamental human right

Trade Union and Labour Relations (Consolidation) Act 1992

3 basic rights Right not to be dismissed for a trade union reason Right not to suffer action short of dismissal for a

trade union reason Right not be to refused a job on trade union

grounds

PART-TIME WORKERS

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Part-time workers must be treated equally with full-time workers in all aspects of work

Part-time workers entitled to pro rata rights comparable with full-time workers

Right not to be victimised on account of enforcing rights under the Part-Time Workers Regulations

FIXED-TERM WORKERS

EU Fixed-Term Workers Directive Fixed-term employees should not be treated less

favourably than a comparable permanent employee Defence of objective justification Can no longer waive right to redundancy payments Restriction on the employment of people on

successive fixed-term contracts: four year limit

EX-OFFENDERS

Rehabilitation of Offenders Act 1974 provide some protection from discrimination

Those whose convictions are ‘spent’

Sets out how many years different types of convictions are spent and need not be acknowledged

CONVICTIONS TARIFF

Imprisonment over 30 months never spent

Imprisonment 6 to 30 months ten years Imprisonment less than 6 months seven

years Fine or community service five years Detention in a detention centre three

years Conditional discharge one year Absolute discharge six months

SUMMARY (1 OF 2)

Discrimination law has grown rapidly in recent years

Equal pay law required men and women to be paid the same for work of equal value

Important distinction made between direct and indirect discrimination

Claims for harassment and victimisation can also be made under certain discrimination areas

SUMMARY (2 OF 2)

Disability Discrimination Act (1995) requires employers to consider making reasonable adjustments

Limited protection is given to trade union members, employees who do not engage in trade union activity, part-time workers, fixed term workers and ex-offenders with spent convictions

REFERENCES

Key text: Banfield, P. and Kay, R. (2008) Introduction to Human resource Management (see chapter 6)

Torrington, D., Hall, L. and Taylor, S. (2008) Human Resource and Management (see chapter 23).