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Discrimination Law (Vicarious Liability
(Daniels & Macdonald, 2005)…
Discrimination Law
Definition & Relevance
Favouring one group over another for no justifiable reason (Daniels & Macdonald, 2005)
Relevance in employment:Undermines equal treatment
- equal chance: same chance of gaining from opportunities
- equal access: same opportunity to enter the org
- equal share: same representation of all groups on all levels
Reasons for Discrimination
(Daniels & Macdonald, 2005)
People quickly develop loyalty to a group they belong to and negative attitudes towards other groups
often due to a lack of understanding about eachother -> negative attitudes significantly decrease as contact increases
General Legislation
(Daniels & Macdonald, 2005)
Anti-discrimination legislation in Britain widely governed by EU law -> takes precedence in the event of a conflict or inconsistency and interpretation of domestic law must comply with EU standards
Law protects not only direct employees but also PTs, temps, agency staff, self-employed people, applicants and apprentices
Vicarious Liability
(Daniels & Macdonald, 2005)
If employee commits discriminatory act against another employee in the course of employment , the employer will be held vicariously liable
if the employer was aware of the discrimination and did not stop it, the employer becomes directly liable
Even if the principal claim must be taken against the employer, the claimant can name people who were personally responsible
Employers might be held liable for acts committed by third parties (e.g. customer, supplier) on their employees
Employers can defend by ensuring that they adopt and implement anti-discrimination policies and informing their employees of the existence
Example: Chief Constable of Lincolnshire Police v Stubbs (1990): Police officer harassed female colleague at social gathering after work-> Employer held vicariously liable
Employment Tribunals
(Daniels & Macdonald, 2005)
Procedure
simplified procedures allows people to understand the principles without having legal knowledge -> can represent themselves (although this reduces the chance to win or get compensated)
If people are unable to resolve a complaint for discrimination with in-house procedures, they can submit their complaint to the tribunal
Before claims are handled in the tribunal, they go to the Advisory, Conciliation and Arbitration Service (ACAS), who offer free of charge early conciliation to find a compromise without going to the tribunal
independent juridical body, less formal than court (e.g. judges not wearing gowns), but also hearings under oath
One the claimant has established facts indicating less favourable treatment, the burden of proof shifts to the employer to show that the reason for different treatment was not due to a protected characteristic (if not able -> claimant wins)
-
Equality Act 2010
Basics
- consolidates nine separate statutes and 116 pieces of legislation prohibiting discrimination within one piece
- before EqA10: pieces of separate legislation protected people from discrimination (e.g. Equal Pay Act 1070, Sex Discrimination Act 1975, Race Relation Act 1976)
- internal (protests and demands from disadvantaged groups) and external (supranational influences from US/EU legislation) factors influenced the development of the EqA10 (Dickens, 2007)
- EqA10 also provides a concept for dual discrimination (simultaneous discrimination against two characteristics) but is currently not in force
- Equalities and Human Rights Commission (EHRC) was created to oversee and enforce legislation
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Advantages
- actual complex legislation difficult to understand for people who want to make use of their rights (Dickens, 2007)
- Adding and amending regulations in this complex body became easier (Wintermute, 2007)
- represents a form of solidarity among groups facing discrimination (Wintermute, 2007)
- Facilitates the sharing of information
- Covers and defines indirect discrimination equally for different types of discrimination
- Commands greater respect and influence
- Allows better treatment of cumulative discrimination (Dickens, 2007) -> Questionable
- Improved efficiency and administration
Disadvantages
- Changing the legislation on the surface does not help to diminish discrimination (Solanke, 2011)
- different forms of discrimination should be treated by different specialised committees (Wintermute, 2007)
- Single commission as opportunity to cut public spending (Wintermute, 2007)
- Narrowly defined characteristics resulted in inflexibility to deal with complaints because claims have to be brought clearly in the scope of one characteristic and failure to deal with multiple discrimination (Solanke, 2011)
- Failed to address occupational segregation as main reason for gender inequality (vertical and horizontal) (Burton, 2014)
- Only avenue to pursue justice is in ET -> lengthy and costly process and monetary compensation does not improve the situation (Burton, 2014)
Implications of BREXIT
- UK will be entitled to amend EqA10 without regard to EU law but EqA10 likely to continue for foreseeable future with only minor changes
- Possible changes: cap on compensation for discrimination cases and application of legislation only for companies with 50 or more employees because they have more resources to make reasonable adjustment
- UK labour market very different from other EU member states because much more deregulated -> difficult to implement all the regulations -> problem: cost of implementation not distributed evenly in accordance with benefits businesses receive from it
and therefore SMEs overburdened (Coulter & Hancke, 2016)
- UK Prime Minister already guaranteed that workers' existing rights remain as they are and all EU employment law will be converted into domestic law (stated in Great Repeal Bill) but at the same time May says that UK laws won't be made in Brussels andymore and that the judges interpreting those won't sit in Luxembourg but the UK -> Contradiction? (Pyper, 2016)
Positive Action
(Kumra & Manfredi, 2012)
Employer takes steps to help or encourage certain groups of people with different needs, or who are disadvantages in some ways, to access work or training