Definitions

positive discrimination

Employment discrimination law in the United Kingdom

Employment discrimination law in the United Kingdom combats prejudice in the workplace. It protects discrimination against people based on gender, race, religion or belief, sexuality, disability and, most recently, age. There are also important provisions which deal with discrimination by an employer on the grounds of your work status as a part time worker, fixed term employee, agency worker or your union membership. It does not form anything like a coherent code, and it lacks consistency. It is made up of various pieces of legislation which sometimes cover employment issues only, and sometimes are part of a larger equality framework (for instance in education or public authority benefits). Recently the government passed the Equality Act 2006. But, as one academic has stated,

"despite its title it did not attempt to codify, standardise or simplify the complex and Byzantine provisions of anti-discrimination law: this task has been left to the ongoing Discrimination Law Review.

A worker who has suffered discrimination at work can enforce their rights by taking the employer to an Employment Tribunal. Dismissals which follow discriminatory action are considered automatically unfair under s.94 of the Employment Rights Act 1996. There are certain conditions that have to be fulfilled before this can happen, so it is generally recommended to seek advice before taking this type of action. Sources of advice include trade unions, ACAS, employment law solicitors and local Citizens Advice Bureau.

History

Anti-discrimination law is a recent development. The old common law approach, and Acts of Parliament were directly discriminatory. They engendered the old prejudices of a class based society which saw white, private school educated men as the only legitimate heirs to places of political and economic power. Slavery was abolished in the UK by a decision known as Somersett's case in 1772. But for the colonies of the British Empire and its trade routes, slavery persisted until 1810. The old system of voting was based on how much property one possessed. Like all countries, religious discrimination was also rife, but particularly against Catholics and Jews. The Catholic Emanicpation Acts put an end to that only at the beginning of the 19th century.

It went without dispute that women were marginalised from general social participation. The first changes came at municipal level, particular in the Birmingham Municipal Council from the 1830s. The Chartists from the mid 19th century, and the Suffragettes after the turn of the 20th century lobbied for universal suffrage against a conservative judiciary and a liberal political establishment. In Nairn v. The University Court of the University of St Andrews (1907) a judge called Lord McLaren even proclaimed that it is

"a principle of the unwritten constitutional law of this country that men only were entitled to take part in the election of representatives to Parliament.

The Representation of the People Act 1918 gave the universal franchise to men, and knocked away the last barriers of wealth discrimination for the vote. But for women, only those over 30 were enfranchised, and the judiciary remained as conservative as ever. In Roberts v. Hopwood (1925) a metropolitan borough council had decided to pay its workers £4 a week, whether they were men or women. The House of Lords approved the district auditor's cancellation payment for being overly gratuitous, given working class conditions. Lord Atkinson said the council had allowed,

"allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour.

After a decade, the Representation of the People Act 1928 finally gave women the vote on an equal footing. Attitudes to racial prejudice in the law were set to change markedly with the proverbial "winds of change" sweeping through the Empire after World War II. As Britain's colonies won independence, many immigrated to the motherland, and for the first time communities of all colours were seen in London and the industrial cities of the North. The first statutes prohibiting racial discrimination followed the Civil Rights Act 1964 in the United States. The Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Race Relations Act 1976 were passed by Harold Wilson's Labour government.

In 1972 Britain became a member of the European Community, which became the European Union in 1992 with the agreement of the Maastrict Treaty. The Conservative government opted out of the "Social Chapter" of the treaty which included provisions on which anti-discrimination law would be based. Although they passed the Disability Discrimination Act 1995, it was not until Tony Blair's "New Labour" government won the 1997 election that the UK opted into the social provisions of EU law. In 2000 the EU overhauled and introduced new Directives explicitly protecting people with a particular sexuality, religion, belief and age, as well as updating the protection against disability, race and gender discrimination. The law is therefore quite new, and still in a state of flux. Between the EU passing directives, and the UK government implementing them, it is apparent that the government has often failed to offer the required minimum level of protection. There are likely to be more changes soon to iron out the anomalies.

Equality framework

Equality legislation in the UK lacks unity, as it does all around the world. A plethora of different statutes, secondary legislation, EU directives and Treaty provisions, all passed at different times, all with different frameworks, exceptions and language makes the full picture difficult to grasp. However, with recent EU Directives, there has been a concerted effort to provide standard definitions and to simplify. The three main Directives are the Equal Treatment Directive (2006/54/EC, for gender), the Racial Equality Directive (2000/48/EC) and the Employment Equality Framework Directive (2000/78/EC, for religion, belief, sexuality, disability and age). Where the UK already had legislation (as for gender, race and disability), this has been amended. And where it did not secondary legislation - that is a regulation passed by a minister based on a power from the European Communities Act 1972 - was introduced.

The basic framework in employment discrimination cases is that somebody claims they have been "treated less favourably" than someone who is (to take typical examples) not female, Irish, Jewish, gay, handicapped or old. "Less favourable treatment" could be getting paid less, getting fired, or even not being hired because of one's status. To show this, one must find a "comparator". In reality it is much easier, say if you are a woman getting underpaid, to point to a real life man doing the same job getting 5% an hour more than you. But claimants can also allege unfair treatment by using a "hypothetical comparator". They may say "if I were a white Englishman, I would be paid more".

Discrimination law in Europe also distinguishes between "direct" and "indirect" discrimination. Direct discrimination is overt, like an employer saying "I'm firing you because I don't like gays". This is never capable of justification, and is precisely the kind of mentality that discrimination law aims to stamp out hard. Indirect discrimination, however, can be just as bad but it comes in more subtle form. It involves the application of an apparently neutral provision, criterion or practice to everyone, but it has a disproportionate effect on some people. For instance, an employer could have a rule that said "everyone must work on Sundays" or "applicants with red hair need not apply". These rules would have greater impact on some people (religious people and people with white skin) more than others. But employers may always attempt to provide "objective justification" for the disparate treatment. They may be able to show that they were seeking to fulfil a legitimate aim (for Sunday work, the legitimate aim would be maintaining a running business to maximise customer service; for not hiring red haired people, there is unlikely to be any legitimate aim!). This is a matter or balance, and reasonableness. Judges will assess whether employers were acting in good faith, whether they looked at all the alternatives so as not to disadvantage anybody, and whether their policies are proportionate. The following table is an overview of the law, and some of its complications.

The matrix of UK discrimination law
Gender Race Religion or belief Sexuality Disability Age
UK law Sex Discrimination Act 1975 and Equal Pay Act 1970 Race Relations Act 1976 Employment Equality (Religion or Belief) Regulations 2003 Employment Equality (Sexual Orientation) Regulations 2003 Disability Discrimination Act 1995 Employment Equality (Age) Regulations 2006
Definition ss.1-3B s.3 r.2(1) r.2 s.1, Sch.1 r.2
Harassment s.4A s.2 r.5 r.5 s.3B r.6
Victimisation s.4 s.2 r.4 r.4 s.55 r.4
Genuine occupational requirements ss.7-7B, 'g.o.q.' s.4A, 'g.o.r.' r.7, 'g.o.r.'; also r.7(3) 'organisational ethos'; and see R (Amicus) v. SS for T&I r.7, 'g.o.r.'; also organised religion exemption s.5(1)(b) r.8 (Art.6), special exceptions
On grounds: personal or general s.1(1)(a), personal; see also Strathclyde Regional Council v. Porcelli s.1(1)(a), general; see Weathersfield v. Sargeant r.3(1), personal; but see Coleman v. Attridge Law r.3, general; but see English v. Sanderson Blinds Ltd s.4, personal; but see Coleman v. Attridge Law r.3(1)(a), personal; but see Coleman v. Attridge Law
Duty to accommodate? Yes, especially for pregnancy - No, Ahmad v. UK, Copsey v. WWB Devon Clays Ltd and McClintock v. DCA - Yes, s.4A (Art.5) -
EU law 2006/54/EC; 97/80/EC 2000/43/EC 2000/78/EC 2000/78/EC 2000/78/EC 2000/78/EC

There are important differences between each bit of legislation's scope and effect. One of the most litigated questions is "what is being protected?" So the definition of "race" or "disability" will play an important part of whether someone who has been less favourably treated at work can claim for compensation. "Harassment" means getting bullied, and suffering harassment gives rise to a separate claim for compensation. There is now a unified definition of harassment, which appears in all the sections. Harassment is,

"unwanted conduct... with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

"Victimisation" refers to suffering some further detriment after trying to complain or claim for initially bad treatment, and also forms a new head of compensation. The row on "Genuine occupational requirements" refers to exceptions to the prohibition on direct discrimination. An example could be a theatre saying "we need someone of African ancestry to play Othello at our performance." An employer has the burden of showing that they really, genuinely need somebody of a particular gender, race, religion, etc. for the job. These exceptions are few. The reference to "on grounds" of the gender, race, religion, etc. of the person, or generally is a current point of debate. The question is whether a person who is not female, Irish, Jewish, etc. can still claim for discrimination because of their association with somebody who is of a protected group. UK legislation, except race and sexuality, does not allow this. However a recent case in the European Court of Justice is likely to decide that the legislation must be amended. Finally, the duty to accommodate refers to the idea that employers should actively pursue policies to accommodate protected groups into the workforce. This duty is made explicit in law for pregnant women and for people who are disabled. For people with religious sensitivities, particularly the desire to worship during work cases show there is no duty, but employers should apply their minds to accommodating their employee's wishes even if they ultimately decide not to.

Equality legislation

The following six Acts apply not only to employment, but most aspects of life. Examples of prohibited discrimination include as customers, in social security, access to education and other public services.

Gender

In the UK, equality between sexes has been a principle of employment law on since the 1970s, when the Equal Pay Act 1970 and the Sex Discrimination Act 1975 were introduced. Also, in 1972, the UK joined the European Community (now the EU). Article 141(1) of the Treaty of the European Community states,

"Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied."

Race

In the Weaver v. NATFHE race discrimination case (also known as the Bournville College Racial Harassment issue), an Industrial Tribunal decided that a trade union’s principal obligation in race harassment cases is to protect the tenure of the accused employee. A member of a trade union making a complaint of workplace harassment against a fellow employee was not entitled to union advice and assistance, irrespective of the merit of the case, because the employee complained against could lose his job. The Employment Appeal Tribunal upheld the decision and extended the decision to cover complaints of sexist harassment.

Religion or belief

Discrimination on grounds of religion was previously covered in an ad hoc way for muslims and sikhs through the race discrimination provisions. The new regulations were introduced to comply with the EU Framework Directive 2000/78/EC on religion or belief, age, sexuality and disability.

Sexuality

Disability

Age

Enforcement

Equality and Human Rights Commission

The main outcome of the Equality Act 2006 was the establishment of a new Equality and Human Rights Commission, subsuming specialist bodies from before. Its role is in research, promotion, raising awareness and enforcement of equality standards. For lawyers, the most important work of predecessors has been strategic litigation (advising and funding cases which could significantly advance the law) and developing codes of best practice for employers to use. Around 20,000 discrimination cases are brought each year to UK tribunals.

"Positive" discrimination

It is important to note that discrimination law is "blind", in the sense that a white Englishman - who is also agnostic, heterosexual and young - could make discrimination claims if he is being treated less favourably than comparable people who are doing the same work as him but have some different characteristic. Positive discrimination (or "affirmative action" as it is known in the US) to fill up diversity quotas, or for any other purpose, is prohibited throughout Europe, because it violates the principle of equal treatment just as much as negative discrimination. There is, however, a large exception. Suppose an employer is hiring new staff, and she has 2 applications where the applicants are equally qualified for the job. If the workforce does not reflect society's makeup (e.g. that women, or ethnic minorities are under-represented) then the employer may prefer the candidate which would correct that imbalance. But they may only do so where both candidates are of equal merit.

Work status protection

More recently, two measures have been introduced, and one has been proposed, to prohibit discrimination in employment based on atypical work patterns, for employees who are not considered permanent. The Part-time Workers Regulations and the Fixed-term Employee Regulations were partly introduced to remedy the pay gap between men and women. The reason is, women are far more likely to be doing non-full-time permanent jobs. However following the Treaty of Amsterdam, a new Article 13 promised Community action to remedy inequalities generally. The abortive Agency Workers Directive was meant to be the third pillar in this programme. Discrimination against union members is also a serious problem, for the obvious reason that some employers view unionisation as threat to their right to manage.

Part time workers

Fixed term "employees"

Agency workers

Union members

See also

British and general pages

American legislation

Notes

References

  • Hugh Collins, Keith Ewing, Aileen McColgan, Labour Law, Text, Cases and Materials (2005) Hart Publishing ISBN-10: 1841133620
  • Simon Deakin, Gillian Morris, Labour Law (2004) Hart Publishing
  • Lord Wedderburn, The Worker and the Law (1986) Sweet and Maxwell ISBN-10: 0421370602

External links

Please note, the legislation listed below goes in order of European directives, followed by UK legislation and secondary instruments which implement them. In the case of the Race Relations Act 1976, the Sex Discrimination Act 1975, the Equal Pay Act 1970 and the Disability Discrimination Act 1995, UK legislation came first, and in many instances goes further than the minimum requirements which European harmonisation aims at.Non-permanent workers

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