ABSTRACT
Discrimination law is rapidly expanding and of growing importance. At present the law covers gender, race and disability discrimination, sexual orientation and age. This new edition covers all of these areas. It also contains separate chapters on the social, political and philosophical aspects for those who require a fuller understanding of the background and theoretical basis of discrimination law. In addition, the book contains a section on procedural matters.
It takes account of the numerous legislative developments which have taken place since the last edition. The text has also taken account of the many new cases since 1998, which include: Pearce v Governing Body of Mayfield Secondary School (2003); Nagarajan v LRT (1999); Chief Constable of West Yorkshire v Khan (2001); R v Secretary of State for Employment exp Seymour-Smith (1999 and 2000); Harvest Town Circle Ltd v Rutherford (2001); South Ayrshire Council v Morton (2002); Lawrence and Others v Regent Office Care (2002); Re Badeck (2000); Grutter v Bollinger (2003); Goodwin v UK (2002); Mendoza v Ghaidan (2002); A and Others v Secretary of State for the Home Department (2002) and A v Chief Constable of West Yorkshire (2002).
This work explains and examines in-depth every possible aspect of discrimination law. It is set out in such a way that makes it accessible to readers of all levels.
TABLE OF CONTENTS
chapter 1|18 pages
THE BACKGROUND TO RACE DISCRIMINATION LEGISLATION IN THE UK
This chapter will examine the background to the issues of racial discrimination, racial inequality and consequent legislation in the UK. We will highlight key statistics and the way in which they have been changing and developing in recent years.
chapter |4 pages
(4) The Reproduction of Racism
In the last section we saw overt and covert discrimination identified in peoples’ behaviour and decision-making. In addition, racial disadvantage is compounded by structures and institutions that operate to the detriment of ethnic minorities. The following extracts examine and identify how such behaviour and decision-making is reproduced.
chapter |2 pages
(5) The Current Employment Position of Minority Ethnic Groups
United Kingdom Percentages
chapter 3|8 pages
POST-WAR POLITICAL AND LEGAL RESPONSES
We start with the general political response to immigration in the 1950s and 1960s. In this first extract, Solomos explains successive governments’ policy of linking integration to immigration control. In the second extract, Lester and Bindman observe that such a policy is fundamentally absurd.
chapter 2|5 pages
THE BACKGROUND TO SEX DISCRIMINATION LEGISLATION IN THE UK
The history of women’s inequality is well-documented. Politically, legally, socially and economically, even partial freedom for women arrived only relatively recently. Social disadvantages remain, if judged by the proportion of women in high political or
chapter 2|3 pages
THE CURRENT POSITION OF WOMEN AND WORK (1) Women’s Pay Levels
It is commonplace to point out and bemoan the fact that the gap between women’s pay levels and those of men has not declined rapidly since the Equal Pay Act 1970 (which actually came into force in 1975). To ensure that like is compared with like, the usual comparison is of hourly pay rates. When that is done, it is seen that in the early
chapter |3 pages
(1) Neo-Classical Economics
The first issue, however, is whether there is even a problem which needs to be explained. Those who believe in the primacy and the efficacy of the free market as the allocator of jobs and resources would argue that both the pay which women receive and the jobs which they perform are the result of market economics mediated by the free choices of the individuals concerned. On this view, the price of labour is
chapter |1 pages
(2) Human Capital Theories
So the labour market devotees shifted to another approach: the human capital theory. Here, women’s lower wages are said to result from a decision to invest less in education and skills training than men, coupled with the fact that skills and experience decline during the period when women are absent from the labour market for family reasons. Women may choose to make a lower investment than men because
chapter |21 pages
(3) Segmented Labour Market Theories
The explanations so far considered have concentrated on the attributes women bring to the labour market and thus imply that the actions of employers are not responsible for any marketplace inequality; they might thus be regarded as ‘blaming the victim’. These fail to provide an adequate explanation of why men and women behave differently in the labour market. It is necessary to seek to explain why women are
chapter 5|7 pages
SEXUAL HARASSMENT (1) The Causes of Harassment
Although the legal principles are applicable both to sexual and racial harassment, it is clear that the causes and motivations for sexual and racial harassment may well differ. While sexual harassment is normally viewed as an exercise of power over women, it may lack the overt hostility that tends to accompany much racial harassment, and the
chapter 3|6 pages
BACKGROUND TO DISABILITY AND AGE LEGISLATION
It is straightforward to discover the number of women in Britain, and reasonably straightforward to discover the numbers in each ethnic or national group. In the vast
chapter 4|2 pages
THE AIMS OF ANTI-DISCRIMINATION LEGISLATION
We are concerned in this chapter with ideas about what the aims of anti- discrimination both are and should be. There is a distinction between equality of
chapter |5 pages
(1) From Hostility to Unconscious Discrimination
While the first and most obvious meaning of discrimination emphasises hostility or prejudice, it is necessary to use a wider definition adopted because, first, the evidence shows that adverse treatment, or adverse effect, frequently occurs in the absence of prejudice or hostility and, secondly, it is difficult to define or prove prejudice or hostility. In the first extract, Sunstein discusses prejudice, whilst in the second,
chapter |19 pages
(2) Principles of Harm and Fairness
The next question is whether the focus on harm can also be used to explain why indirect discrimination is wrong. The task is harder here: for one thing, an employer may be liable for indirect discrimination without knowledge of the fact that such discrimination is occurring; for another, the inequality on which a claim of indirect discrimination is based may be the result of factors over which the individual
chapter 5|1 pages
THE SOURCES OF ANTI-DISCRIMINATION LAW
There is vast range of legislation covering discrimination, coming from various sources with the inherent problem of differing styles and competing status. Legislation specifically covers race, religion or belief, sex, gender reassignment, sexual
chapter 2|1 pages
THE RELATIONSHIP OF DOMESTIC, EC AND HUMAN RIGHTS LEGISLATION (1) Supremacy of EC Law
The basic legal foundation of the European Community is the Treaty of Rome, although its subsequent amendment means that it is now more accurate to refer to it as the European Community Treaty (or EC Treaty). European Community law has
chapter |4 pages
(2) Direct Effect of EC Treaty Articles
The doctrine of the supremacy of Community law makes it necessary to determine the precise mechanism by which provisions of the Treaty take effect within the domestic law of the Member States. One essential question is whether a Treaty Article may have only vertical direct effect (creating an obligation on the State to the individual) or whether it has also horizontal direct effect (creating obligations between individuals).
chapter |6 pages
(4) Actions against the State – the Francovich Principle
An individual may suffer financial loss as a result of a State’s failure to implement a directive or implement it correctly. In such a case, there may be a remedy against the State. This principle was established in Francovich.
chapter |18 pages
(2) Judicial Statutory Interpretation
Although the common law has failed to develop substantive principles of equality and non-discrimination, the judiciary plays a major part in the development of discrimination law in their role as interpreters of the legislation. There are many theories of statutory interpretation, from ‘framer’s intent’ to ‘living tree’, ‘literal’ to ‘purposive’. Most cases fall into the literal/purposive dichotomy.
chapter 6|4 pages
THE PROHIBITED GROUNDS OF DISCRIMINATION
Legislation specifically covers race, religion or belief, sex, gender reassignment, sexual orientation, disability and will cover, in due course, age. The definition of ‘disability’ is discussed in Chapter 16. The principal domestic legislation is the Race Relations Act (RRA) 1976 and the Sex Discrimination Act (SDA) 1975. In addition (deriving from
chapter |3 pages
(3) Nationality
This category was introduced into the 1976 Act as a result of the House of Lords’ decision in Ealing LBC v CRE, a case on the 1968 Race Relations Act, which prohibited discrimination on grounds of ‘national origin’, but not ‘nationality’. The House of Lords held that a Polish national, whom the Council had refused to put on their housing list, had no claim under the 1968 Act. Lord Cross stated: ‘It is not
chapter |4 pages
(5) Ethnic Origins
Under this head it has been argued (successfully) that Sikhs, Jews, ‘Gypsies’ and (unsuccessfully) Rastafarians fall within the definition of ‘ethnic origins’. The leading case on the definition of ‘ethnic origins’ in the RRA 1976 is Mandla v Dowell Lee. According to the rules of a private school, boys had to wear the school uniform
chapter |7 pages
(a) Language requirements and ethnic origins
defined by language. The matter was discussed by the EAT in Jones. The council required applicants to speak Welsh. Two Welsh complainants – who spoke English only – brought a claim of discrimination on grounds of their ethnic origins. An
chapter |2 pages
(b) Section 2A of the SDA 1975
led to s 2A of the SDA 1975 coming into force on 1 May 1999. However, s 2A (being passed under the European Communities Act 1972) is confined to cases of direct discrimination in the field of employment matters only. As we shall see, it is possible to extend the protection beyond that given by s 2A.
chapter |5 pages
(c) Protection beyond s 2A of the SDA 1975
As mentioned above, in reflecting actual decision in P v S, s 2A only covered direct discrimination in the field of employment and occupation. However, subsequent cases have broadened the protection beyond the strict wording of s 2A. The decision in suggests that the SDA 1975 as a whole may apply to transsexuals. The European Court of Human Rights in Goodwin v UK held that the
chapter |7 pages
(2) Sexual Orientation
Sexual orientation discrimination is covered by the Employment Equality (Sexual Orientation) Regulations 2003, in force since 1 December 2003. They were implemented in response to the Equal Treatment at Work Directive. Accordingly, the Regulations extend only to employment and vocational training.
chapter 7|6 pages
DIRECT DISCRIMINATION
Two forms of discrimination on the prohibited grounds (race, sex, religion, etc) are identified in the legislation: direct and indirect. Direct discrimination arises where, for instance, an advertisement reads: ‘Librarians wanted, no women need apply.’ This
chapter 3|4 pages
‘ON GROUNDS OF’ (1) Intention, Motive and the ‘But For’ Test
The council allocated more grammar school places to boys than to girls. Consequently, a higher entrance exam pass mark was required of girls. The council argued that, for liability, there had to be an intention or motive to discriminate. The House of Lords
chapter |1 pages
(2) Race Need Not Be the Only Ground of the Less Favourable Treatment
In Owen and Briggs v James, a firm of solicitors refused to employ a black applicant, Ms James. The industrial tribunal found that an important factor in that decision was race. A partner in the firm had stated to the successful candidate: ‘I cannot understand why an English employer would want to take on a coloured girl when English girls
chapter |1 pages
(3) Discrimination on the Ground of Another’s Race
Under the SDA 1975, the less favourable treatment must be on the ground of the sex of the complainant. Under the RRA 1976, on the other hand, the less favourable treatment may be on the ground of the race of a third party. This latter approach has been adopted in the Religion and Sexual Orientation Regulations. In Showboat Entertainment Centre Ltd v Owens, Mr Owens, who was white, was a
chapter 4|7 pages
PROOF OF DIRECT DISCRIMINATION
Direct discrimination can be covert, resulting from a state of mind which, by its very nature, is not likely to be susceptible to direct proof. feeling, whether based on instinct or a certain amount of knowledge, that the best person has not been appointed. Defendants will almost always put forward an alternative explanation for their behaviour, in some cases because they have every
chapter 8|1 pages
ANTI-DISCRIMINATION LAW, PREGNANCY AND CHILDBIRTH
The fact that women get pregnant and give birth, while men do not, raises issues of great theoretical and practical importance for those concerned with equality issues.
chapter 2|6 pages
THE LAW
European Community law has, like the UK, adopted a twin track approach. The first track asks whether disadvantageous treatment of pregnant women is sex discrimination in contravention of the Equal Treatment Directive (76/207/EEC). second track, manifested especially in the Pregnant Workers Directive, grants direct rights to such workers irrespective of discrimination. That Directive was incorporated
chapter |15 pages
(a) Pregnancy or immorality
The applicant was a teacher of religious education expected to teach Catholic principles. She became pregnant as the result of a relationship with a Roman Catholic priest in the locality. Effectively she was forced to leave her post. It was accepted that
chapter 9|2 pages
HARASSMENT
When the Sex Discrimination Act (SDA) 1975 was passed, the concept of sexual harassment, though not of course the experience of it, was almost unknown. Racial harassment was seen as an issue, perhaps without using that exact phrase, but here
chapter 2|6 pages
THE ELEMENTS OF HARASSMENT (1) The Comparison
Here lies the major difference between the pre-existing case law and the statutory definition. The new statutory definition merely requires that the conduct is ‘related to’ sex, sexual orientation, race, religion or belief, or disability, as the case may be. No comparison with how someone else not belonging to the protected group in question
chapter |1 pages
(3) Assessing Whether There Has Been Harassment (a) Relevance of the perception of the victim
In conventional cases of direct discrimination, the House of Lords, in R v Birmingham has held that it is enough that the victim considered – reasonably – that they had been treated less favourably, even in the face of objective evidence. There must be some reasonable grounds for that perception; it is not enough that the
chapter |11 pages
(b) One-off and serial incidents and the victim’s response
It is common for victims not to complain at the time of the harassment. This can be the case also where there is a series of unwelcome conduct. The cases make clear that a one-off incident may amount to harassment and a series of incidents should be assessed as a whole, not in isolation. Holland J in Driskel (below) suggested that a failure to make a contemporaneous indication that the conduct was unwelcome may
chapter 10|17 pages
INDIRECT DISCRIMINATION
Different concepts of discrimination reflect different social goals and philosophies and thus are generally the products of legal positivists, although it cannot be denied that
chapter |2 pages
(2) Causation and ‘Can Comply’
This is a causative element, demanding a connection between the challenged practice and the claimant’s sex, race, religion or belief, or sexual orientation, as the case may be. The old definition, still relevant for the residual cases, demands that: ‘the proportion of women who can comply [with a requirement] is considerably smaller than the proportion of men who can comply with it ...’ The current definition in the
chapter |27 pages
(b) The new definition and causation
As seen above, the new definition opens the way to challenges to subjective employment practices and perhaps even some ‘result-only’ cases, brought largely, or purely, on statistical evidence. Causation will often be a major issue in these cases. Once again, the American experience can give some guidance on how the law may develop here.
chapter |16 pages
(b) Examples of the defence
Seniority may be relevant to employment benefits in a number of different ways. For example, incremental pay systems mean that greater seniority may be associated with higher pay; total accumulated seniority profoundly affects pension entitlement; priority for promotion or other benefits may be dependent on seniority as may access
chapter 11|14 pages
VICTIMISATION
It is clearly necessary to provide legal protection for people who take legal action under anti-discrimination law or assist others to do so.
chapter 12|8 pages
DISCRIMINATION IN EMPLOYMENT
Under the legislation, ‘employment’ means ‘employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour’.
chapter |15 pages
(2) Discriminatory Terms of Employment
which are on different terms are potentially caught by sub-s (1)(b) of the parallel provisions. Once the offer becomes part of the contract, any sex discrimination claim must then be under the Equal Pay Act 1970 rather than the SDA 1975; the complex interrelationship between the two pieces of legislation is explained in Chapter 14.
chapter |1 pages
(b) Work in a private home
Section 6(3) of the original SDA 1975 provided exceptions in all cases where the number of employees did not exceed five, and also where the employment was for the purposes of a private household. These wide exceptions were held to be contrary to the Equal Treatment Directive in Commission of the European Communities v UK. ECJ reasoned that, as regards small undertakings with not more than five employees,
chapter |2 pages
(e) Duties to be performed abroad by men or by women
Section 7(2)(g) of the SDA 1975 provides a defence where a job involves the performance of some duties outside the UK ‘in a country whose laws or customs are such that the duties could not, or could not effectively, be performed by a woman’. The defence recognises that women may be culturally unacceptable for some jobs in some countries; there is no equivalent defence in the RRA 1976. A defence based on
chapter 5|2 pages
DISCRIMINATION BY OTHER BODIES
Section 52 of the SDA 1975 and s 42 of the RRA 1976 provide that nothing in the respective Acts ‘shall render unlawful an act done for the purpose of safeguarding national security’. Section 52(2) of the SDA 1975, now repealed, provided that a ministerial signature was to be conclusive proof that an act was done for that purpose. The ECJ in Johnston held that the conclusive nature of such a certificate was contrary to
chapter |1 pages
(3) Trade Organisations
These are defined in all the legislation as ‘an organisation of workers, or ... of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists’. The relevant provisions are s 12 of the SDA 1975, s 11 of the RRA 1976, and reg 15 of either the Sexual Orientation, or Religion or Belief, Regulations 2003. The law covers access to and conditions of
chapter |2 pages
(4) Qualifying Bodies
Section 13 of the SDA 1975, s 12 of the RRA 1976 and reg 16 of either the Religion or Belief, or Sexual Orientation, Regulations 2003 deal with discrimination by bodies which confer authorisation or qualification necessary for entry into employment, such as the Law Society, the various Institutes of Professional Engineers, or sporting bodies such as the British Boxing Board of Control, a licence from whom is necessary in order
chapter 6|1 pages
SPECIAL PROVISIONS FOR CERTAIN EMPLOYMENTS (1) The Police
Section 16, now repealed, of the RRA 1976 provided that a constable was an employee, whilst s 32 provides that ‘Anything done by a person in course of his employment shall be treated ... as done by his employer as well’. In Chief Constable of Bedfordshire the Court of Appeal held that ss 16 and 32 combined did not
chapter |1 pages
(2) The Prison Service
Unlike the police, the only specifically permissible discrimination concerns height requirements. disproportionately more men than women. The absence of reference to clothing means that different rules for men and women on dress must be tested according to the normal employment case law, which at present gives employers substantial
chapter |2 pages
(5) The Armed Forces
There are no exceptions for the armed forces, except under the SDA. However, the Government might argue such an exception under ‘national security’, discussed above. Section 85(4) of the original SDA 1975 provided a blanket immunity as regards employment discrimination carried out by the armed services. Such justification could only relate, tenuous as it might be, to national security. Johnston v
chapter |1 pages
(2) Instructions and Pressure to Discriminate
For unlawful instructions, the instructor must either have authority over the person subject to the instructions, or the latter must be accustomed to act in accordance with his wishes. For pressure, there must either be the provision or offer of a benefit, or the imposition or threat of a detriment. In CRE v Imperial Society of Teachers of Dancing, the defendant’s secretary told a
chapter |2 pages
(3) Aiding Unlawful Acts
Section 42 of the SDA 1975, s 32 of the RRA 1976, and regulation 23 of either the Religion or Belief, or Sexual Orientation, Regulations, make it unlawful ‘knowingly’ to aid another person to do an act of unlawful discrimination. Under s 42(2), s 32(2) or reg 23(2), the individual discriminator is deemed to aid the doing of the act by the employer. This means that individual liability for aiding an unlawful act depends
chapter 13|4 pages
DISCRIMINATION IN FIELDS OTHER THAN EMPLOYMENT
The sex and race discrimination legislation applies to state, independent and special
chapter |2 pages
(1) The Public or a Section of the Public
This part of the legislation is concerned with activities which potentially lie at the margin of acceptable legal intervention. The law has to determine which activities should be controlled and which should remain unregulated in the interests of personal autonomy. It would be too great an infringement of personal liberty to allow a claim of race discrimination if a black person was not invited to a birthday
chapter |1 pages
(b) Care of children
In Applin v Race Relations Board, the House of Lords held that children who had been taken into the care of a local authority were a section of the public and that therefore the provision of fostering facilities was covered by the legislation. In consequence, there could be no discrimination in the way in which fostering arrangements were organised, making it impermissible for foster parents to specify the race of the child
chapter |4 pages
(b) When provided by public authorities
It is clear that commercial services provided by public bodies or local authorities are within the sections. The position with respect to non-commercial activities is much less straightforward. The answer to the question will determine the extent to which many of the major policy and administration functions of government are brought within the scope of the legislation. While judicial review may be available as an
chapter 4|2 pages
OTHER PROVISIONS (1) Sex and Race (a) Charities
There are a number of other provisions where special or differential treatment is permitted under one or both pieces of legislation. Only the first two examples are covered by both the SDA 1975 and the RRA 1976.
chapter |1 pages
(3) Sex Only (a) The actuarial exception
There are five exceptions peculiar to the SDA 1975.
chapter 5|4 pages
(c) Voluntary bodies (d) Special facilities or services (e) Communal accommodation ADVERTISEMENTS
There are three exceptions from the section concerning the provision of goods, facilities and services which closely mirror the defence of genuine occupational qualification for employment. Under s 34 of the SDA 1975, voluntary bodies may restrict their membership to persons of one sex only, and may likewise restrict the benefits or facilities which they provide. This provision is needed because many such
chapter 14|2 pages
THE LAW OF EQUAL PAY
The Equal Pay Act (EqPA) 1970 enables a woman to claim equality with a man where she is engaged on ‘like work’, work ‘rated as equivalent’ under a job evaluation scheme and, since 1983, where her work is of equal value with that of her male
chapter 3|4 pages
THE MEANING OF PAY
The coverage of the legislation has been transformed by European law. Article 141 provides:
chapter 4|1 pages
CHOOSING A COMPARATOR (1) Who Chooses the Comparator?
The claimant may choose with which employee she is claiming equality. However, EAT authority that an employment tribunal may not substitute a more suitable or ‘representative’ comparator had doubt put upon it by a dictum of Balcombe LJ in He commented that it: ‘is necessary that the selected male
chapter |2 pages
(3) Real or Hypothetical Comparator?
Although predecessors or successors may be used, the comparator must be a real person. This is a major limitation on the potential effectiveness of the Act. There is a close correlation between low pay and the proportion of female employees in a firm; in many of the lowest paying firms, the workforce is 100% female. In such firms, claims under the EqPA 1970 can effectively never be brought; therefore, the Act cannot
chapter 7|12 pages
EQUAL VALUE – SECTION 1(2)(c)
The second question is when can it be said that two jobs have been ‘rated as equivalent’. In O’Brien v Sim-Chem Ltd, it was held to be sufficient if the evaluations under the scheme had been completed. There was no need for the scheme to be implemented; complaints under this section are most likely to be because a completed scheme was, for some reason, not implemented. However, in Arnold v Beecham Group
chapter |10 pages
(a) Equal pay and fair pay
a difference in pay, when it is not tainted with sex discrimination. The first cases involved the employer overpaying a man, by reason of an administrative error. In all but one of these cases, the EAT accepted this reason as a genuine material factor. These decisions were approved by the House of Lords in two recent cases, where the
chapter |13 pages
(2) The Defence in Operation (a) Market forces/collective bargaining cases
In Chapter 10, we considered, inter alia, the question of when first, seniority and, secondly, part-time work can justify unequal pay. We now turn to other specific examples of the defence in operation. Cases where market forces are put forward as a defence are critical for the conceptual
chapter 10|1 pages
EQUAL PAY AND COLLECTIVE BARGAINING (1) History
The story here is an unhappy one, both in a technical legal sense and in a policy sense. It is a story of total failure to get to grips with the issues. The Equal Pay Act 1970 originally contained, in s 3, a limited provision aimed at remedying discrimination in collective agreements. If a provision of an agreement
chapter |1 pages
(2) The Current Position
Discriminatory terms in collective agreements are covered also by ss 72A and 72B of the RRA 1976 (inserted by SI 2003/1626, in force since 19 July 2003); the Employment Equality (Sexual Orientation) Regulations 2003, SI 2003/1660; or the Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1661 (in force since 1 December 2003 and 2 December 2003, respectively), reg 35 and Sched 4.
chapter 11|3 pages
EQUAL PAY REMEDIES
Two procedural rules for equal pay claims were challenged as being contrary to Art 119 (now Art 141) in the cases of Levez v Jennings and Preston v Wolverhampton The first rule, s 2(4) of the EqPA, required claims be brought, at the latest, within six months of the termination of employment (‘the qualifying date’). The second rule, s 2(5) of the EqPA, provided that arrears or damages in respect
chapter 12|2 pages
CONCLUSION: THE FUTURE FOR EQUAL PAY LAW
Despite many recent developments, there remain two serious defects of current equal pay law: first, its failure to recognise the collective element in pay determination and, secondly, the fact that employers may wait for a claim to be brought rather than being under an obligation to take positive steps in the direction of equal value. As the legislation in force in Ontario purports to deal with both these issues, it provides a
chapter 15|3 pages
RETIREMENT AND PENSIONS
Pensions law is exceedingly complex but of fundamental importance in relation to issues of equality and to the more general issue of maintaining a proper standard of living for the growing proportion of the population which has ceased to work. For
chapter |5 pages
(1) Are Pensions Pay?
Article 141 (formerly Art 119) provides that ‘pay’ is ‘the ordinary minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives, directly or indirectly, in respect of his employment from his employer’. In the context of pension provision, the wording has received an extremely broad interpretation, an interpretation which has been the basis of the dramatic changes in
chapter |1 pages
(2) Equality in Pension Provision (a) Who may claim and against whom?
In determining what is meant by equality in pension arrangements, the first question concerns who is entitled to claim equality and against whom may equality be claimed. it was stated that the ‘interpretation of Art 119 [now Art 141] is not affected by the fact
chapter |2 pages
(b) The meaning of equality
The second aspect of equality concerns the issue of what is meant by equality in the context of pensions, and how that equality is to be achieved. There are two issues: equality as regards access to a scheme, and equality as regards the benefits under the scheme.
chapter |7 pages
(c) Interaction with State schemes
Because of the fact that State pension arrangements – as well as ages – often differentiated between male and female benefits, it is not uncommon for occupational pension schemes to make adjustments in an attempt to ensure overall fairness. While equality of benefits is now mandatory for benefits applicable to periods of service after the date of the Barber judgment, these cases raise the problem of whether
chapter |4 pages
(e) Actuarial considerations
The issue is the extent to which it is permissible for pension arrangements to take into account the fact that, on average, women live longer than men. This could be done by increasing female employee contributions relative to men, or by differentiating between employer contributions in respect of male and female employees. There is no need to do either of these: the total potential liabilities of a scheme may be
chapter 16|1 pages
DISABILITY DISCRIMINATION
After many years of political pressure, the anti-discrimination principle was finally extended to disabled people through the Disability Discrimination Act (DDA) 1995. The Act is similar in some ways to the Sex Discrimination Act (SDA) 1975 and the
chapter |3 pages
(2) Progress Towards Legislation
Even if the view is taken that a quota system is inappropriate, it does not follow that anti-discrimination legislation is the right solution. Throughout most of the 1970s and 1980s, the preferred Government response was an entirely voluntary approach by way of education and assistance, both of employers and the disabled, in the belief that goodwill towards the disabled was present, with only the means to implement it
chapter 2|24 pages
THE DEFINITION OF DISABILITY (1) Defining Disability
The definition of who is protected by the legislation – the definition of disability – is more complex than in relation to gender and race.
chapter 3|12 pages
(4) Those Previously in the Register of Disabled Persons DISCRIMINATION IN EMPLOYMENT (1) Introduction
The legislation abolished the previous protection available through the quota system. While such protection was very limited, it was considered to be inappropriate to exclude anyone who might previously have been classified, rightly or wrongly, as disabled, but who, but for this section, would fall outside the new definition. The effect of Sched 1, para 7 is to grant the protection to those who were registered as
chapter |13 pages
(4) The Duty to Make Adjustments
This section is the key to the legislation. It imposes a duty to take positive action in a way entirely unknown to the SDA 1975 and the RRA 1976, reflecting the truths that disabilities do affect ability to perform a job, but to a far lesser extent than is often supposed and in a way which can often be overcome with effort and imagination. Section 5(2) (set out above) defines this as discrimination and so provides a separate
chapter |5 pages
(3) Transport
The ‘use’ of means of transport is excluded from the general principle of non- discrimination in relation to the provision of services. In consequence, the range of facilities provided to the public, such as information about times, waiting rooms, etc, are covered under s 19 and, again, the employment provisions clearly apply to transport operators in the same way as to other employers. Aircraft and sea-going
chapter |1 pages
(d) Harassment
In line with the Directive, a new s 3B will provide a uniform free-standing right against harassment. It differs slightly in principle from the other free-standing definitions (in relation to race, sexual orientation and religion or belief), in that the harassment must be related to the victim’s disability. So, for example, harassing a colleague because of a spouse’s disability, or in the mistaken belief that the colleague
chapter 7|1 pages
(5) The Disability Rights Commission PROPOSED REFORM
The amendments will give the Commission power (s 17B) to take action in relation to instructions and pressure to discriminate (s 16C) and discriminatory advertisements At the time of writing, the Government was planning to pass through Parliament new
chapter 17|7 pages
ENFORCEMENT OF ANTI-DISCRIMINATION LEGISLATION
Effective implementation of anti-discrimination legislation requires, first, a system of procedural law which readily permits the presentation of serious claims; secondly, a
chapter |7 pages
(2) Individual Claims Before Employment Tribunals (a) Before the hearing
Under the Sex Discrimination Act (SDA) 1975, the Race Relations Act (RRA) 1976, Sexual Orientation, and Religion or Belief, Regulations 2003, individuals may complain to an employment tribunal of a breach of the employment part of the legislation.
chapter |11 pages
(3) Employment Tribunal Remedies
There are three remedies available to the tribunal if a claim succeeds: a declaration, an award of compensation, and a recommendation for action. The remedies apply only to the successful applicant, reflecting the individualistic philosophy of the legislation. The failure to make the remedies more collective and wide-ranging is one of the major failings of the legislation, and contrasts sharply with the class action procedure
chapter |3 pages
(c) Recommendations
If it considers it just and equitable to do so, a tribunal may make ‘a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates’. The drafting of this power is seriously defective. First, it is limited to making a
chapter 3|14 pages
STRATEGIC ENFORCEMENT OF THE LEGISLATION
The Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission are the bodies charged both with enforcement of the legislation and with acting in various ways on behalf of their constituencies. There are as of yet no bodies representing the sexual orientation or religion or belief legislation, although the SDA 1975 has been amended to bring discrimination on the
chapter |1 pages
(5) Discriminatory Practices (6) Judicial Review
In most discrimination cases, there will be an identified victim who must establish that a detriment has been suffered. Where there is no such victim, action may be taken by the appropriate Commission. A discriminatory practice is an indirectly discriminatory practice where there is no identifiable victim. There is no power to take immediate action before an employment tribunal; the Commission can only act
chapter |4 pages
(a) A single equality commission?
The Government proposed, in 2002, a single equality discrimination commission, representing all the legislation. Whatever the merits of this proposal, there would be a risk of diluting the expertise and specialisms within the CRE and EOC. In Northern Ireland, the Fair Employment Commission, the EOC (NI), the CRE (NI) and the Disability Council (NI) have been merged to form one over-arching Equality
chapter 18|2 pages
AFFIRMATIVE ACTION
It has long been argued that the mere avoidance of discrimination carries with it little prospect of significant overall improvement in the socio-economic position of disadvantaged groups. For that reason, it is contended, more proactive measures are
chapter 2|1 pages
BRITISH LAW (1) Disability Discrimination
Unlike the other discrimination legislation, the Disability Discrimination Act (DDA) 1995 does not take a symmetrical approach. It affords protection only to those with disabilities. As such, positive discrimination is lawful under the DDA 1995, but there is a constraint in the public sector. Section 7 of the Local Government and Housing Act
chapter |3 pages
(a) Training and encouraging recruitment – Sex Discrimination Act 1975
Section 48 of the Sex Discrimination Act (SDA) 1975, covers employers or trade unions giving training to existing workers or members, or positive encouragement in and beyond the workforce or membership to take up particular work. In addition, it allows trade unions (but not employers) to encourage women to become members. Section 47 covers any person giving positive encouragement or training to women.
chapter |1 pages
(c) Training and encouraging recruitment – Race Relations Act 1976
Section 37 of the Race Relations Act (RRA) 1976 parallels s 47 of the SDA 1975, except for two matters. First, when assessing under-representation, it is the proportions, not numbers, that must be compared. Secondly, s 37 of the RRA 1976 does not provide a ‘domestic responsibility’ trigger. Section 38 of the RRA 1975 parallels s 48 of the SDA, except in two matters. As before, when assessing under-representation, it is the
chapter |13 pages
(d) Training and encouraging recruitment – sexual orientation and religion or belief (e) The legislation generally
Regulation 26 of the Employment Equality (Sexual Orientation) Regulations (the ‘Sexual Orientation Regulations’) 2003, and reg 25 of the Employment Equality (Religion or Belief) Regulations (the ‘Religion or Belief Regulations’) 2003 follow the scheme set out in ss 37 and 38 of the RRA 1976 or ss 47 and 48 of the SDA 1975, above.
chapter 4|6 pages
US LAW
In the USA, public sector affirmative action programmes are measured by the constitutional right to equal protection under the law. In Metro Broadcasting v FCC, the challenged programmes were designed to encourage participation by racial minorities in the broadcasting industry. The purpose was not to compensate for past discrimination, but to promote diversification in programming. The Supreme Court
