e quality and e mployment. l earning objectives understanding the legislative framework that governs...
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EQUALITY AND EMPLOYMENT
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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
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THE LEGAL FRAMEWORK (1 OF 2)
Statutes make it unlawful to discriminate on
Sex Marital status Race National origin Ethnicity Disability Sexual orientation
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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
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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
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DISCRIMINATION ON GROUNDS OF SEXOR MARITAL STATUS
Equal Pay Act 1970
Sex Discrimination Act 1975
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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
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AMENDED ACT 1983 – TYPES OF CLAIMS
Like work
Work rated as equivalent
Work of equal value
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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’
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GENUINE MATERIAL FACTORS
Different qualifications
Performance
Seniority
Regional allowances
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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
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TYPES OF CLAIMS
Direct discrimination. ExceptionsAuthenticityDecencyPersonal services
Indirect discrimination Sex or sexual harassment Victimisation
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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
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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
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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
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TRANSSEXUALS
Unlawful to discriminate on the grounds that someone is a medically defined transsexual
Rights protected by Sex Discrimination (Gender Reassignment) Regulations 1999
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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
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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
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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
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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
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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
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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?
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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
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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
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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
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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
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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).