Recommendations Requiring Legislative Change MyAssignmenthelp.com

Question: Discuss about the Recommendations Requiring Legislative Changes. Answer: Introduction In the jurisdiction of United Kingdom, the Equality Act 2010 (EA) offers the legal protection for people in workplace from any kind of discrimination (UK Government, 2015). It is an act of the Parliament of United Kingdom and Management presents the same objectives as that of the key European Unions Equal Treatment Directives, as this act mirrors and implements the provisions of this directive. This act provides the lawful structure to provide the equal opportunity for everyone and to safeguard the rights of individuals (Gutenberg, 2017). This act prohibits discrimination on the basis of gender reassignment, age, race, disability, sexual orientation, pregnancy and maternity, religion or belief, marriage and civil partnership, and sex. The discrimination on these bases is protected in the different areas, such as membership of clubs and associations, employment, exercise of public functions, education and access to good and services (NHS Health, 2015). In October 2010, the EA became a law. The EA replaced the various anti-discriminatory laws through a single act. This act replaced the previous legislations like the Disability Discrimination Act 1995 and the Race Relations Act 1976. This act makes sure that there is a consistency in what is needed to be done by both the employees and the employers, in order to make their workplace comply with law and a fair environment (ACAS, 2017). In the following parts, the various aspects of this act have been highlighted. These include the background of this act, along with the changes made from the previous discrimination legislation. The problems which are faced under this act have also been highlighted, with the help of relevant case laws. Before drawing the final conclusion, certain recommendations have also been given, regarding the implementation of measures by the organizations to ensure the compliance of this act. Discrimination means being treated in an unfair manner. The EA came into force to protect the individuals from being discriminated by: The organizations and businesses providing the goods and services, for instance, utility companies, banks and shops Employer Health care providers like the care homes and the hospitals Public bodies like local authorities and government departments A person from whom the property is brought or rented out, for instance the estate agents and the housing associations Transport services, for instance taxis, trains and buses The education providers, for instance, schools and colleges (Citizen Advice, 2017). The EA presents 9 protected characteristic, through section 4, which are gender reassignment, age, race, disability, sexual orientation, pregnancy and maternity, religion or belief, marriage and civil partnership, and sex (The Law Society, 2012). Management any discrimination which happens on the basis of one or more of such characteristics is deemed unlawful in accordance with this act. In case a person is treated in an unfair manner as a result of belonging to a particular group, which ahs the protected characteristics, then it can be deemed as unlawful discrimination and is covered under this act (Wadham et al. 2012). A commitment to the Equality Bill was made by the Labour Party in their election manifesto of year 2005. The Government Equalities Office led the Discrimination Law Review, which was formulated in the year 2005, so as to develop the legislation. The findings of the Equalities Review Panel, which was reported in February 2007 and was chaired by Trevor Phillips, were considered in the Review (Gutenberg, 2017). The purpose of the EA was to simplify the laws existing at that time by clubbing together the present laws. The EA replaced the following acts, Employment Equality (Age) Regulations 2006, Employment Equality (Sexual Orientation) Regulations 2003, Employment Equality (Religion or Belief) Regulations 2003, Disability Discrimination Act 1995, Race Relations Act 1976, Sex Discrimination Act 1975, and the Equal Pay Act 1970 (Gutenberg, 2017). The Equality Bill was considered as the biggest idea of the Labour party for eleven years. This bill was drafted under the guidance of Harriet Harman and Polly Toynbee wrote this bill. Following the debates shortly after 11 pm on April 6th, 2010, the Parliamentary process was completed and the amendments by the House of Lords were accepted fully. Finally, the Equality Bill received the Royal Assent on April 8th, 2010 and came to be known as the EA (UK Parliament, 2017). Whenever an individual is treated in a less favorable manner as a result of a protected characteristics, an association without someone having protected characteristics, a direct discrimination takes place. Direct discrimination also covers the situations where as a result of thinking that an individual has a protected characteristic, or due to being associated to a person having the protected characteristic, a person is treated in an unfavorable manner (The Law Society, 2012). So, any unreasonable behavior against the protected characteristics would not be held to be discriminatory, as was seen in the case of Glasgow City Council v Zafar [1998] ICR 120 (Swarb, 2015). The indirect discrimination occurs in cases where a practice or policy which is applicable on everyone, especially the disadvantageous individuals who share a protected characteristic. Indirect discrimination can be acceptable only when it can be shown that the practice or policy was a proportionate means of attaining a genuine objective. Earlier the indirect discrimination was applicable on sex, marriage and civil partnership, sexual orientation, religion or belief, race and age. Though, now, it has been extended to gender re-assignment and disability. Yet, this provision remains non applicable to the protected characteristic of pregnancy or maternity (The Law Society, 2012). Discrimination arising from disability The this section, an individual would be discriminated against if such an individual is being treated in an unfavorable manner as a result of their disability, and such a treatment cannot be acceptable. Unlike the previous two provisions regarding direct and indirect discrimination, the disability discrimination does not necessitate a comparator to show less favorable treatment (The Law Society, 2012). The employers have the duty of making the reasonable adjustments for the disabled individuals. There is a threefold duty under this section. When any practice, criteria or provision has the ability of putting a disabled individual at a substantial disadvantage, in comparison to the ones who are not disabled, regarding a relevant matter, the person on whom such duty is applicable, has to take the reasonable steps in order to avoid such disadvantage. When a physical feature has the ability of putting a disabled individual at a substantial disadvantage, in comparison to the ones who are not disabled, the person on whom such duty is applicable, has to take the reasonable steps in order to avoid such disadvantage. When a disabled individual could be under a substantial disadvantage, but for the provision of an auxiliary aid, in comparison to the ones who are not disabled, the person on whom such duty is applicable, has to take the reasonable steps in order to avoid such disadvantage (The Law Society, 2012). The provisions regarding harassment are applicable to all the protected characteristics, save for marriage and civil partnership, and pregnancy and maternity. Specifically, three types of harassment are prohibited under this act; these include sexual harassment, less favorable treatment of a service user as a result of submission or rejection of sexual harassment relating to the gender or sex reassignment, and the harassment related to any of the relevant protected characteristics (The Law Society, 2012). Changes made from the Disability Discrimination Act 1995 The EA, as highlighted earlier, was formulated to present a single legislature and as a result of this, the Management Disability Discrimination Act 1995 was repealed. The EA carries forward the protections that were given under the Disability Discrimination Act, but with certain differences. These differences have been summarized below: The EA, unlike the Disability Discrimination Act, protects the disabled people from any kind of direct discrimination, in areas which are even beyond the field of employment. The EA, in the matter of discrimination, presented improved safeguards which occurred as a result of something which was connected to the disability of the person. With the EA, the principle of indirect discrimination for the disability was introduced. A trigger point is to be applied under the EA, at which point there is a need to make the reasonable adjustments for the disabled. The disability related harassment is also prohibited and protected through the EA. The EA also safeguards an individual from harassment and direct disability discrimination due to perception or association. The EA also restricts the kind of enquires which can be made by the recruiting staff regarding the health or disability of an individual, while recruiting a new staff member (University of St Andrews, 2017). Changes made from the Equal Pay Act 1970 At the time the EA was passed, the equal pay legislation had been present for over 30 years, and yet there was a major gender gap issue. The Government believed that by encouraging transparency in the different areas, the equality could be achieved. This is the reason why the EA rendered the secrecy clause as unenforceable in the contracts of employment, due to which the employees were prevented from making a disclosure regarding their pay to their colleagues, so that any difference in the pay, as a result of the protected characteristics, could be identified. Hence, to unenforced a secrecy clause, the disclosure of information has to be related to a possibility of discrimination (Talibart et al. 2010). The EA also gives the Government the power to issue such regulations which require the private sector employers, with over 250 employees, to issue the information regarding the pay of the employee, so as to show if there is a difference in the male and female employees pay. The aim of the Government was to encourage the big employers to publish the details of any gap on the basis of gender pay in their organizations on a voluntarily regular basis. However, the position for the public sector in the gender pay reporting was different. And the public bodies, which had more than 150 employees, were required to issue annually the details of the disability employment rates, gender pay gap, and ethnic minority employment rates (Talibart et al. 2010). The provisions covered under the Sex Discrimination Act, regarding harassment were quite wide. Specially, after the changes were made in April 2008 in the act. The employer could be held legally responsible for employees harassment through a third party, i.e., a contractor or a consumer, in case the harassment took place at least on 2 prior occasions and there was a failure on the part of the employer to undertake the reasonable steps to stop so. This situation was considered as an anomaly by the government and hence, the EA extends this very protection covered under the harassment provisions to all the protected characteristics, though the pregnancy and maternity), and marriage and civil partnership protected characteristics are not included under this (Talibart et al. 2010). The definition of harassment has been widened by the EA throughout numerous strands, so that any such conduct which is related to any protected characteristics can be covered under the ambit of this act. In other words, the need for an individuals particular protected characteristics to be the reason for the unwanted conduct is not needed. And so, harassment on the basis of association or perception would be covered under the EA, where an individual is harassed due to the religion, faith or belief of their spouse, or because such an Management individual is perceived as a gay (Talibart et al. 2010). Potential Problems with the EA The disability rights issues were thoroughly analyzed in the report published by the House of Lords Select Committee (UK Parliament, 2016b). One of the key problems which results in the underperformance of the EA relates to the absence of clarity regarding the authority responsible for making sure that the act works. Nick Morgan, MP had stated that at the Government Equalities Office, thee advice to the department regarding the act is given by them. And the Head of the Office for Disability Issues states their purpose as coordinating the representation of UK interests, and developing and monitoring the cross-government disability strategy. The Minister of Disabled People is responsible for mental health matters and cross-government disability issues and strategy (Perry, 2012). In addition to this, there is Equality and Human Rights Commission, having its set of duties to promote equality and awareness of rights under the act. So, Equality and Human Rights Commission has the duty to enforce the act, but their powers are limited due to availability of funds. So, can the Chancellor be blamed for the failure of the act to deliver in its expectations? Due to these many layers of regulatory bodies, the purpose of the act is not met (Perry, 2012). The other problem in the act relates to whether or not an individual be considered as a disabled. This can be elucidated with the two cases of Aderemi v London and South Easter Railway Ltd [2013] Eq. LR 198 (Aderemi) 1, as well as, Russell v Fox Print Services LLP UKEAT/0545/12/KN (Kamm and Lee, 2017). In the Aderemi v London and South Easter Railway Ltd judgment, the Employment Appellate Tribunal held that Employment Tribunal had failed in considering what activities the claimant could not do, and concentrated on what he could do, to decide the disability of the claimant. This is a wrong approach and hence, the Employment Appellate Tribunal allowed the appeal (Employment Cases Update, 2017a). In Russell v Fox Print Services LLP the second limb of the test for disability was applied. As at the date of dismissal, the medical condition of the claimant had not lasted the required 12 months period, and there was no real possibility of such happening, her claim could not be brought under the 2010 act. This is the reason why the employment judge struck out the claim for disability discrimination (Employment Cases Update, 2017b). This case shows that an employee, even under this act, could be refused the protection from disability. In the case of Burke v College of Law; Solicitors Regulation Authority [2012] EWCA Civ 37, the Court of Appeal and EAT considered the adjustments made in the examination practices by the college of law for a student suffering from multiple sclerosis (Employment Cases Update, 2017c). In P v Governing Body of A Primary School [2013] UKUT 154 (AAC), the tendency of physical abuse was taken as a disability for the child (British and Irish Legal Information Institute, 2013a). So, on the basis of the facts of the case, the applicability of this act can be modified. This can pose as potential problems, where the big law firms, with deep knowledge of laws, manipulate such case laws, in their favor, for beating the purpose of the act. An example of this can be seen in the case of Foster v Cardiff University UKEAT/0422/12/LA. In this case, the claimant was suffering from chronic fatigue syndrome and made a claim regarding the insufficient adjustment of the academic workload to cater to her needs. The claim was held to be improper by the Tribunal, and on an appeal by the claimant stating that the tribunal has failed in comparing her and a non disabled person, the EAT dismissed the appeal by stating that tribunal had taken the right approach. The EAT further held that the approach was not inconsistent with Article 5 of Directive 2000/78/EC. Hence, such cases, not only beat the purpose of the act but also results in waste of time of tribunal (Employment Cases Update, 2017d). A problem is also raised in the matters relating to the identification of Provision, Criteria or Practices (PCP). Due to the lack of criteria regarding what can or cannot be taken as a PCP, the issue is constantly to be solved by the tribunals. This point was made by EAT in the case of Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley [2012] UKEAT 0417_11_2303 and the Employment Tribunals decision was overturned by the EAT on the basis that the identified PCPs were not capable of being one (British and Irish Legal Information Institute, 2012a). In Lalli v Spirita Housing Ltd [2012] EWCA Civ 497, a similar point was made, though in a different context. The disability of the claimant did not result in him being abusive and so, the disability was not held as disadvantageous to him regarding PCP (British and Irish Legal Information Institute, 2012b). Acknowledging that a reasonable adjustment has been made or not is also a matter of wide interpretations and this is the reason why a number of cases are made in this regard to the Tribunal. One of such cases is ML v Kent CC [2013] UKUT 125 (AAC), the Upper Tribunal, after considering the case, held that there was no failure on the part of the employer in making the reasonable adjustments (British and Irish Legal Information Institute, 2013b). Section 15 contains provisions regarding discrimination arising from disability. Though, there is a little which can be done by the appellate authority regarding this. However, a matter in this regard was brought before the EAT in Espie v Balfour Beatty Engineering UKEAT/0321/12/DM (Employment Cases Update, 2017e). The case of JS v Secretary of State for Work and Pensions [2014] UKUT 0428 (AAC) is evidence to the fact the case laws have to constantly deal with the inconsistencies under the EA (Littleton Chambers, 2017). Recommendations The potential problems highlighted above show that the act, due to its wide interpretation, opens channel gates for the litigations, which instead of creating an ease in such matters, has raised the number of litigations. The rising number of claims highlight need to implement the measures in the organizations, to ensure that the Equality Act is enforced and adopted in a proper manner. And in doing so, the purpose of the act is kept in mind. In addition to the misuse of the provisions of the act, there is also a rise in the number of cases being brought under this act due to non compliance with the provisions of the act. This can be done by bringing out a policy, which contains the key provisions of the act; specially the one, which are prone to be breached. Along with this, the managers have to be trained to ensure that they understand the act properly and can ensure its compliance by the employees (HR Council, 2017). There is also a strict need to apply the recommendations given by the House of Lords Select Committee (UK Parliament, 2016a). Conclusion From the above analysis, it can be concluded that the EA provides the provisions which govern the equality in the employment in UK. This act prohibits unfair discrimination in workplace by restricting any sort of harassment or acts where the individuals are discriminated on the basis of gender, race amongst the other things. This act provided a conclusive legislation, in comparison to the tens of laws that were applicable earlier. To critically analyze this act, the various problems covered under this act were highlighted through the case laws. These case laws showed the possible problems which can arise, when the purpose of the act is not properly met. Some recommendations for the proper compliance of this act have also been elucidated. Despites the issues, it can be summarized that the EA is a successful act and helps in ensuring equality in the workplace. References ACAS. (2017) The Equality Act 2010. [Online] ACAS. Available from: https://www.acas.org.uk/index.aspx?articleid=3017 [Accessed on: 28/02/17] British and Irish Legal Information Institute. (2012a) Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley [2012] UKEAT 0417_11_2303 (23 March 2012). [Online] British and Irish Legal Information Institute. Available from: https://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKEAT/2012/0417_11_2303.htmlquery=title+(+bagley+)method=boolean [Accessed on: 28/02/17] British and Irish Legal Information Institute. (2012b) Lalli v Spirita Housing Ltd [2012] EWCA Civ 497 (24 April 2012). [Online] British and Irish Legal Information Institute. 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