Gower Handbook of Discrimination at Work

Hazel Conley, Tessa Wright, Tessa Wright

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317125310
• Edition: 1
• Topic: Jura
• Subtopic: Diskriminierungsgesetz

Workplace discrimination is an experience that, despite four decades of equality legislation, continues to blight the lives of thousands every year. Discrimination persists on the protected grounds of sex, race, disability, age, sexual orientation, religion or belief and gender reassignment, as well as where no legal protection exists such as in relation to class background or migration status. The Handbook discusses recent changes in equality legislation as well as considering the limitations of legal frameworks in addressing inequality. However, complying with the law is only the first step towards addressing discrimination in the workplace, and the book goes beyond the law and provides evidence of good practice in promoting organisational culture change, as well as considering future directions for policy on equality action. The Gower Handbook of Discrimination at Work looks at both social justice and business case perspectives, and its message is not a negative one. The contributors have considerable depth of understanding of workplace discrimination, both as academics and equality practitioners, their work has contributed to policy formation and all are committed to improving the lives of people at work. They offer insights into existing international developments and make suggestions for the ways in which positive change can be realised. Practitioners, such as human resources professionals and other managers involved in addressing equality at work, trade unionists, equality trainers, and academics concerned with researching or teaching in the areas of employment and equality will all find this book of interest. Furthermore, it will be of value to students in the fields of business and management, employment law, equality and diversity and human resource management.

PART I
Legal Framework and the Limits of the Law

CHAPTER 1
A Right Not to be Discriminated Against: The Origins and Evolution of Discrimination Law

SONIA MCKAY

Introduction

This chapter begins by looking at the origins of UK discrimination laws, noting that earliest legislation, the Equal Pay Act 1970, represented the government’s response to industrial action taken by women workers who were being paid less than male colleagues doing similar work. The chapter then turns to consider how the law developed around concepts of non-discrimination, direct and indirect discrimination, together with the principle of no less favourable treatment. These concepts are explained and the key legal cases are reviewed. The chapter then discusses whether the law has been effective in countering discrimination and notes that the complexity of the law and the difficulties faced by applicants taking cases means that the likelihood of success is very low. The public sector duties not to discriminate, initially introduced into race discrimination legislation and gradually extended to other strands of discrimination, are not covered in this chapter, but are discussed in full elsewhere (see Conley, Chapter 2).

Nearly 40 years ago the first piece of legislation aimed at tackling discrimination in employment – the Equal Pay Act 1970 – was introduced in the final days of the Labour government of 1964–1970, as the government’s response to a strike in 1968 of women workers at the Ford Motor Company. The women had demanded equal pay with men working on comparable, but different work, in other sections of the factory. Their strike had been partially successful and had highlighted that pay discrimination was systemic, with employers, and often unions, accepting that women could be paid less. Job segregation – the division of men and women into different types of work – assisted in this discriminatory process; since men and women often did not work alongside one another doing exactly the same jobs. The next two advances in discrimination law were the Sex Discrimination Act 1975 and Race Relations Act 1976. The Acts were introduced at around the same time as European level legislation began to concern itself with issues of discrimination, with a directive, on equal pay in 1975 and another on equal treatment in 1976. However, while UK legislation also applied in relation to race discrimination, at European level the law dealt only with sex discrimination. It was not until 2000 that two new directives going beyond this were introduced: Directive 2000/43/EC, which implements the principle of equal treatment between persons irrespective of racial and ethnic origin; and Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation on the grounds of religion or belief, disability, age or sexual orientation.

From 1976 and for the next 20 years sex and race were the only areas covered by UK discrimination law. However, in the last 15 years, the range of issues covered by discrimination law has grown significantly. The Equality Act 2010 incorporates all of the following laws into one statute. The aim has been to standardise the legislation and to ensure that it reflects the decisions of the courts in a number of key legal rulings interpreting the legislation:

• Equal Pay Act 1970 (as amended): provided a right to equal pay with a comparable worker of the opposite sex;

• Sex Discrimination Act 1975 (as amended): prohibited discrimination on the grounds of sex, gender reassignment, marriage or civil partnership;

• Race Relations Act 1975 (as amended): prohibited discrimination on racial grounds – colour, race, nationality, ethnic or national origins;

• Disability Discrimination Act 1995 (as amended): prohibited discrimination against disabled persons;

• Sex Discrimination (Gender Reassignment) Regulations 1999: prohibited discrimination against transsexuals and those in the process of gender reassignment;

• Employment Equality (Sexual Orientation) Regulations 2003: prohibited discrimination on the grounds of sexual orientation;

• Employment Equality (Religion or Belief) Regulations 2003: prohibited discrimination on the grounds of an individual’s religion or belief; and

• Employment Equality (Age) Regulations 2006: prohibited discrimination on the grounds of age.

In addition, there are two other areas of law related to non-discrimination, on part-time workers and on fixed-term (temporary) employees. The relevant legislation is:

• Part-time workers (Prevention of Less Favourable Treatment) Regulations 2000 gave a right to no less favourable treatment to part-time workers; and

• fixed-term employees (Prevention of Less Favourable Treatment) Regulations 2002: gave a right to no less favourable treatment to temporary employees.

There is therefore now a well-established body of law prohibiting discrimination at work and the range of issues covered is extensive. However, discrimination remains a constant feature of workplace experience in the UK (Hepple et al. 2000; Dickens 2007; Fredman and Spencer 2003; Wrench 2007). Women continue to earn around 20 per cent less than men (Ashe,2009); black and minority ethnic workers are more likely to be working in low-paying jobs and are also more likely to be unemployed than are white workers (ippr, 2010); lesbian, gay, bisexual and transgendered workers also experience discrimination and exclusion at work (Wright et al. 2006); disabled workers are disproportionately excluded from employment (Gore and Parckar 2010); part-time workers earn less per hour than full-time workers; and temporary workers are the most at risk when it comes to redundancies and cutbacks. The reasons for these continuing discriminatory outcomes are partly because the mere existence of a law cannot of itself guarantee equality, if the mechanisms in place to challenge discrimination are weak and where the structural basis of discrimination is strong. Persistent reported high levels of discriminatory treatment have also been consequent upon the nature of the laws themselves, which are unduly complex, procedurally difficult and have continuingly low success rates. Whilst the Equality Act 2010 may have some impact on this, the problem is more complex than one that can be rectified through consolidating the existing laws. It lies in the definitions of discriminatory treatment and in the inability of the legal and social mechanisms to commit to and to deliver equality.

This chapter examines the key principles of the law, exploring the barriers that prevent it from being effective. It refers to a number of landmark court rulings that have shaped discrimination law and then reflects on the consequences of taking cases to tribunals for the individuals concerned, by looking at the data on outcomes and settlements.

The Concepts of Discrimination and Less Favourable Treatment

Discrimination law is constructed around the following principles:

• The right not to be directly or indirectly discriminated against;

• the right to be treated no less favourably than comparable workers;

• the right not to be subjected to harassment on discriminatory grounds;

• the right not to be victimised for having brought a discrimination complaint; and, in the case of disabled workers

• an obligation on the employer to consider suitable adjustments.

These concepts appear in both the UK legislation and in the EU directives. On the face of it they appear to differentiate between two models – one of the prohibition of direct or indirect discrimination, harassment or victimisation and the other around the concept of ‘no less favourable treatment’. In practice the difference between these two models is not significant. In essence, whether the model is direct/indirect discrimination (sex, race, disability, sexual orientation, religion or belief, age) or less favourable treatment (part-time, fixed-term) the mechanism for taking a discrimination claim is similar. The individual must meet the requirements set out in the legislation and must generally show why the treatment complained of is as a consequence of unlawful discrimination, even if the precise tests, to show direct/indirect discrimination or less favourable treatment, may differ.

DIRECT DISCRIMINATION

An employer directly discriminates against a person where that worker is treated less favourably than someone else (of the opposite sex, of a different racial group and so forth).¹ An employer indirectly discriminates against a person where conditions are imposed which apply to the workforce generally but which adversely affect one group and which the employer cannot objectively justify.² Collins et al. (2005) make the point that the ‘dividing line between direct and indirect discrimination is not entirely clear’ but for lawyers the main distinction is that the legislation provides that direct discrimination cannot be justified (save in relation to disability and to age) whereas indirect discrimination can be, whether by reference to the business case, the impact non-discrimination would have on the workforce generally, or other reasons. Under the age discrimination regulations an employer may treat people differently on the grounds of age if it is ‘a proportionate means of achieving a legitimate aim’ which could include business needs and efficiency; health, welfare and safety and for the particular training requirements of the job. In the age regulations there was also a default age of 65 after which an employer could dismiss an individual simply for age reasons although this provision is repealed with effect from October 2011. This had been viewed as a major deficiency in the law, but one that was upheld by the Court of Justice.

Less favourable treatment, amounting to direct discrimination, can occur in a number of ways, including asking only women about their caring responsibilities; questioning only workers believed to be gay about their sexuality, failing to apply a procedure to a minority ethnic worker, when the procedure would have been applied to a worker of a different ethnicity. Cases of direct discrimination are less likely now to be taken to the tribunals than are cases of indirect discrimination. That is not to say that such cases never occur, but rather that employers are generally aware of the existence of discrimination laws and that they have a duty not to treat workers differently on account of their ethnicity, gender, sexuality, disability, age or religion. An example of a direct discrimination case that was argued in the courts is the landmark case of Shamoon v Chief Constable of the RUC [2003] IRLR 285. Ms Shamoon had some of her duties removed from her post specifically because she was a woman and the duties, which included being armed, were considered unsuited to her gender. Even though she had experienced no loss in pay or grading she took a sex discrimination claim against her employer. The House of Lords (hereinafter referred to as the Supreme Court, the UK’s highest appeal court) held that the employer’s actions, in removing the duties in question did amount to direct discrimination. Another example of direct discrimination is in the case of James v Eastleigh Borough Council [1990] 2 AC 751 (HL), again a case that went to the Supreme Court. Mr James, who was over the age of 60 at the time but was not yet 65, had been charged to use his local swimming pool while his wife, who was the same age as him, was not. The existing rule was that free entry was only obtained after the person had passed state pension age, but since pension ages differ for men and women it meant that women were entitled to the benefit of free entry five years earlier than men. Mr James argued that the council had directly discriminated against him as a man and the Supreme Court agreed. James’ case led to service providers having to amend their rules where they offered age-related benefits. James took the case before the age discrimination laws came into force, and so had to argue the claim on the basis of sex discrimination law. A similar case today might also be argued using age discrimination law.

Direct discrimination does not depend on the employer’s intention or motivation. The fact that, as a result of an employer’s actions, an individual is directly discriminated against, makes it irrelevant whether the employer intended the discrimination to occur or even discriminated for benevolent reasons (such as not giving a worker the chance to carry out their full range of duties to keep them out of danger – the Shamoon case), if that action is applied in a discriminatory manner in areas protected by the law.

For the case to be successful the worker has to show that a comparable worker (of the opposite sex/race and so on) would be or has been treated differently. The test is usually referred to as the ‘but for’ test, when the tribunal will ask the question whether, but for the fact that the individual was female/of a particular ethnicity and so on, the discrimination would have occurred. The law does not therefore attempt to enforce specific standards of behaviour on employers. There is no general obligation to act fairly or to treat all workers well. It is only in comparison with the treatment of other workers in the opposite category that a claim can be brought. If an employer decides to treat all workers badly, for example by stopping workers taking their holidays, a claim cannot be taken under discrimination law. Nor does the treatment have to be identical as long as it is comparable. For example, if there is an employer rule which imposes a dress code on only one sex, this would amount to sex discrimination. However, if dress codes were imposed on both sexes, even if the dress requirements differ (by sex/race and so on), these would not amount to discriminatory treatment (see: Schmidt v Austicks Bookshops [1978] ICR 85 (EAT)). Once the worker has shown that there has been discrimination, the burden of proving that this has not occurred shifts to the employer (see below: ‘Proving Discrimination’).

INDIRECT DISCRIMINATION

Indirect discrimination is intended to tackle cases where employers have seemingly neutral rules, which apply generally but which in practice disadvantage groups of people defined by sex, race, religion, sexual orientation, disability³ or age. The law refers to the employer having a ‘provision, criteria or practice’ which is generally applied but which disadvantages a member or members of a protected group. Indirect discrimination involves the application of a criterion or practice that is shown to:

• Put members of the protected group at a particular disadvantage;

• that is not justifiable; and

• that is to their detriment.

Thus the test is first to see whether a rule that the employer has applied is particularly disadvantageous to members of the protected group. Disadvantageous rules might include: requiring workers to do certain shifts which it is more difficult for those with caring responsibilities (predominantly women) to do; language tests which disadvantage ethnic minority workers; or requiring specific levels of agility, which disadvantage disabled workers. If such rules are applied the courts investigate whether the employer is able to justify the rule, even though it is discriminatory, for example, by showing a clear business need for the rule which could not be otherwise accommodated and which is a proportionate means of achieving a legitimate aim. In essence the court must try to weigh up the discrimination suffered by the employee against the employer’s reasonable needs. It is up to the employer to provide sufficient justification (see below: ‘Proving Discrimination’).

Thus the difference between direct and indirect discrimination is that in the case of the latter the employer can defend the claim by citing reasons that justify the indirect discrimination, which the tribunals will take into account in deciding whether or not the discrimination claim is upheld. The courts will thus examine the rule and determine whether it is justified. The landmark case here is London Underground v Edwards (No. 2) [1997] IRLR 157 (EAT). In this case London Underground had imposed a requirement on its entire train staff that they had to work shifts. Ms Edwards was a single parent and was not able to work the new shift system due to her caring responsibilities. The EAT noted that the employer did have a rule obliging all workers to work shifts. It then noted that for women like Edwards, with caring responsibilities, shift working was much more problematic. It then went on to hold that the requirement for shift working did indirectly discriminate against Edwards and that the employer had not provided an acceptable justification, as other ways could have been found to cover the shifts.

However, the fact that the courts are left to interpret whether employer rules or actions are justified or not means that there is both uncertainty in how the law is applied and also it results in discriminatory impacts being condon...