www.iuc-edu.eugroupsem1_L2empllawEmplLawLec8Di by dffhrtcv3


									   Equal Opportunity Law

    Sex and Race Discrimination
Employment Law, 5th edition, 2003, Tom
           Harrison, ch.6
   Sex and race discrimination – definitions
   Unlawful acts
   Time limits
   Direct discrimination
   Sexual and racial harassment
   Indirect discrimination
   Victimisation
   Lawful discrimination – GOQ/GOR
   Enforcement and remedies
   Disability discrimination
Sex and race discrimination
 The Race Relation Act 1976 and Sex Discrimination
  Act 1975 as amended, identify direct, indirect
  discrimination and victimisation
 Recent amendments – Sex Discrimination (Indirect
  Discrimination and burden of Proof) Regulations
  2001 has amended the definition of indirect sex
  discrimination by changing the scope of indirect
  discrimination. The need for ‘requirement or
  condition’ is replaced by the broader concept of a
  “provision criterion or practice”
 SDA 1975 – discrimination on grounds of gender, marital status,
  by treating a married person less favourably than an unmarried
 RRA 1976 – discrimination on racial grounds, based upon
  colour, race, nationality, or ethnic or national origin;
 Discrimination based on religion – Seider v Gillet Industries
  1980 the EAT held that “Jewish” can mean membership of a
  particular race or ethnic group as well as religion. Also in
  Mandla v Dowell Lee 1983 the HL held that Sikhs were a racial
  group within the meaning of the Act
R R Act,1976 / SD Act, 1975
Direct discrimination
 This    occurs where one        This    occurs where one
  person: treats another less      person: treats another less
  favourably     on    racial,     favourably on the grounds
  grounds e.g. by segregating      of sex or marital status e.g.
  workers by race.                 by providing women with
  S.(1)(a)                         different working condition
                                   or     selecting     married
                                   women for redundancy –
                                   s.1(a), s. 3(1)(b)
R R Act,1976 / SD Act, 1975
Indirect discrimination
 This occurs where one person:       This occurs where one person:
    Requires another to meet a         Requires another to meet a
    condition which as a member of     provision criterion or practice
    a racial group is less easily      which as a member of a
    satisfied because:                 particular sex or as a married
 (a) the proportion of that group      person is less easily satisfied
    who can comply with it is          because:
    smaller; and                      It is to the detriment of a
(b) The condition is to the            considerably larger proportion of
    complainant’s detriment and is     women than man
    not justified                      Example     if    an   employer
Example: if an employer required       advertised for a clerk who is at
    young job applicants to have       least six feet tall. S.1(1)(b),S.
    been educated only in Britain.     3(1)(b)
    S. 1(1)(b)
R R Act,1976 / SD Act, 1975
 This   occurs where one         This   occurs where one
  person:                          person:
  Treats      another     less     Treats      another     less
  favourably because the other     favourably because the other
  has given evidence or            has given evidence or
  information in connection        information in connection
  with, brought proceedings        with, brought proceedings
  under, or made allegations       under, or made allegations
  under the Act against the        under the Act or the Equal
  discrimination. S.2              Pay Act 1970, against the
                                   discrimination. S. 4
Unlawful Acts
 In relation to employment – any discriminatory
  practice which comes within of the three categories
  (direct, indirect or victimisation) is unlawful;
 S. 6 of the SDA and S.4 of the RRA are similar in
  format and relate to discrimination by employers in
  the recruitment process, at the workplace and in
  relation to the termination of employment;
Unlawful Acts

 in the recruitment process – discrimination in the
  arrangements he makes for the purpose of deciding
  whom should be offered employment, the terms
  offered or refusing to offer;
 at the workplace ( employment relationship)–
  access to opportunities for promotion, transfer,
  training or any other benefits or refusing to afford
  such access;
 and in relation to the termination of employment –
  dismissing the complainant or subject him to any
  other detriment
Time limits

 Complaints are made to the ET – three months from
  the act or last act of discrimination;
 “continuing act” – EAT in Sougrin v Haringey Health
  Authority – is a rule or regulatory scheme which
  during its currency continues to have a discriminatory
  effect on the grounds of sex or race;
 If the complainant is out of time – the tribunal still has
  the jurisdiction to hear the complaint if it is “just and
  equitable in the circumstances’
Direct discrimination

  reasons – treats another less fouvarably on the grounds of
  sex, race or marital status;
 In allegations: the formal burden of proof in direct race
  discrimination is on the complainant. In direct sex
  discrimination (a new s. 63A is inserted into the SDA 1975,
  (Indirect discrimination and the burden of proof) Regulation
  2001) is the respondent;
 “where on the hearing of the complaint, the complainant
  proves facts from which the Tribunal could… conclude
  …that the respondent had committed an act of
  discrimination against the complainant which is unlawful…
  The tribunal should uphold the complaint unless the
  respondent proves that he did not commit that act”
Sexual and racial harassment

 Racial harassment constitutes unlawful direct
  discrimination under RRA;
 The European Race Directive 2000 definition -
  “unwanted conduct relating to racial or ethnic origin
  takes place with the purpose of or effect of violating
  the dignity of a person and of creating an intimidating,
  hostile,   degrading.    Humiliating     of    offensive
 The employer could be made vicariously respondent;
Sexual and racial harassment
- range of conduct
 Physical attacks;
 Brushing against the victim;
 Making suggestive statements or telephone
 Pressuring the victim to enter into a sexual
 Sending the victim suggestive material;
Employer vicariously liable for his employees for
sexual or racial harassment

 Liability imposed under SDA, s. 41 (1);”Anything
  done by a person in the course of his employment
  shall be treated for the purpose of this Act as done
  by his employer as well as by him, where or not it
  was done with the employer’s knowledge or approval.
 The victim of sexual harassement at the workplace
  has a potential claim for unlawful direct sex
  discrimination, victimisation or even unfair dismissal;
Indirect discrimination

 A complainant of indirect discrimination can
  be brought under the UK legislation or the
  Equal Treatment Directive;

 ‘ a provision, criterion or practice’ – a
  discretionary criterion could be indirectly
 To establish victimisation it is necessary to establish that the
  less favourable treatment suffered was ‘significantly
  influenced’ or an “important cause’;
 Unsuccessful applicantion for a vacancy because the
  interviewers were consciously or subconsciously influenced by
  the fact that he or she had brought proceedings;
 Refusal to provide a reference as a reaction of her previous
  claim for unlawful discrimination;
 Correct approach to determining victimisation –to compare
  treatment b/n the complainant and the other employees
Lawful discrimination
 Both    SDA 1975s. 7(2) and RRA 1976 s.5(2) identify
  circumstances where it is lawful to discriminate in the
  recruitment of staff-GOQ (genuine occupational qualification)
 GOQ defence only applies to the making of a job offer, or
  access to promotional, training or other benefits. ( not applicable
  in case of detriment or dismissal)
 If a job applicant shows on the balance of probabilities that an
  act of direct or indirect discrimination has occurred it is open to
  an employer to establish as a defence that being of a particular
  sex or racial group is a GOQ;
 the categories of GOQ under SDA s.7(2) – nature of the job, the
  nature of location, the nature of the establishment etc.
Enforcement and remedies
 By individual complaint to an employment tribunal
 The role of the commission for racial Equality and the Equal
    opportunities Commission is an exclusive one;
   Remedies :
   An order declaring the rights of the parties;
   An order requiring the respondent to pay the complainant
   A recommendation of action to be taken by the respondent to
    reduce the adverse effect of discrimination;
Disability Discrimination
 The unlawful act – under s.5 (1) DDA 1995; the
  employer discriminates on reasons related to the
 The employer treats that person less favourably
  than he treats or would treat others to whom that
  reason does not apply; and
 If, and only if, the employer cannot justify the less
  favourable treatment
 The employer fails to comply with any duties to make
  adjustment imposed by the 1995 Act; and if, and only
  if, the employer cannot justify the failure to comply
  with the duty

 Disability is defined as ‘a physical or mental
  impairment which has a substantial and long term
  adverse effect on the persons ability to carry out
  normal day to day activities” – evidence
 Reasonable adjustment – arrangements of premises
 Justification – it must be by reference to a reason
  which is both substantial and material to the
  circumstances of the particular case – risk
  assessment, “reasonable response test”

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