Employment discrimination law in the United Kingdom
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Employment discrimination law in the United Kingdom covers discrimination on sex, sexual orientation, race, religion or belief, disability and, most recently, age. There are also important provisions which deal with discrimination by an employer on the grounds of union membership. It does not form anything like a coherent code, and it lacks consistency.[1] It is made up of various pieces of legislation which sometimes cover employment issues only, and sometimes are part of a larger equality framework (for instance in education or public authority benefits). Recently the government passed the Equality Act 2006, but despite its title it did not attempt to codify, standardise or simplify the complex and Byzantine provisions of anti-discrimination law: this task has been left to the ongoing Discrimination Law Review."[2]
A worker who has suffered discrimination at work can enforce their rights by taking the employer to an Employment Tribunal. There are certain conditions that have to be fulfilled before this can happen, so it is generally recommended to seek advice before taking this type of action. Sources of advice include Trade Unions (for those who have membership), ACAS, employment law solicitors, local Citizens Advice Bureaux and independent organisations such as the Scottish Low Pay Unit.
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[edit] Equality and Human Rights Commission
The main outcome of the Equality Act 2006 was the establishment of a new Equality and Human Rights Commission, subsuming specialist bodies from before. Its role is in research, promotion, raising awareness and enforcement of equality standards. For lawyers, the most important work of predecessors has been strategic litigation[3] (advising and funding cases which could significantly advance the law) and developing codes of best practice for employers to use. Around 20,000 discrimination cases are brought each year to UK tribunals.
[edit] Sex discrimination
Equality of treatment between men and women in employment is not an old concept. The common law attitude was unsympathetic. In Roberts v. Hopwood[4] a metropolitan borough council had decided to pay its workers £4 a week, whether they were men or women. The House of Lords approved the district auditor's cancellation payment for being overly gratuitous, given working class conditions. Lord Atkinson said the council had allowed,
"allowed themselves to be guided in preference by some eccentric principles of socialistic philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour."[5]
In the UK, equality between sexes has been a principle of employment law on since the 1970s, when the Equal Pay Act 1970 and the Sex Discrimination Act 1975 were introduced. Also, in 1972, the UK joined the European Community (now the EU). Article 141(1) of the Treaty of the European Community states,
"Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied."
- Directive 2006/54/EC "on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation".
- Protection from Harassment Act 1997
- Employment Equality (Sexual Orientation) Regulations 2003 SI 2003/1661 (in effect from 1 December 2003)
- Equality Act (Sexual Orientation) Regulations
[edit] Race discrimination
In the Weaver v. NATFHE race discrimination case (also known as the Bournville College Racial Harassment issue), an Industrial Tribunal decided that a trade union’s principal obligation in race harassment cases is to protect the tenure of the accused employee. A member of a trade union making a complaint of workplace harassment against a fellow employee was not entitled to union advice and assistance, irrespective of the merit of the case, because the employee complained against could lose his job. The Employment Appeal Tribunal upheld the decision and extended the decision to cover complaints of sexist harassment.[6]
[edit] Religion or belief discrimination
- Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1660 (in effect from 2 December 2003)
Discrimination on grounds of religion was previously covered in an ad hoc way for muslims and sikhs through the race discrimination provisions. The new regulations were introduced to comply with the EU Framework Directive 2000/78/EC on religion or belief, age, sexuality and disability.
[edit] Disability discrimination
- Disability Discrimination (Meaning of Disability) Regulations 1996, (SI 1996/1455) esp. rr.3-5
- Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability from the Department for Work and Pensions website, esp Part II, para A1; "a substantial effect [under s.1(1) DDA 1995] is one which is more than "minor" or "trivial", and provides that tribunals ought to have regard, in deciding whether an impairment has such an effect to" things like time for relevant activities, the way they are done, impairments' cumulative effects and the effects of behaviour and environment.
- Goodwin v. Patent Office [1999] ICR 302, on a paranoid schizonphrenic
- Vicary v. British Telecommunications plc [1999] IRLR 680, per Morison J
[edit] Age discrimination
- Employment Equality (Age) Regulations 2006, SI 2006/1031
[edit] Work status discrimination
More recently, two measures have been introduced, and one has been proposed, to prohibit discrimination in employment based on atypical work patterns, for employees who are not considered permanent.
- Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551
- Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, SI 2002/2034
- Temporary and Agency Workers (Equal Treatment) Bill 2008
[edit] Union discrimination
- Article 11 ECHR
- Public Interest Disclosure Act 1998
[edit] See also
- Temporary and Agency Workers (Equal Treatment) Bill
- UK agency worker law
- Employment discrimination
- British labour law
- Allgemeines Gleichbehandlungsgesetz (the General Equal Treatment Act) on German Wikipedia
[edit] Notes
- ^ Collins et al (2005) 218-9
- ^ O’Cinneide, “The Commission for Equality and Human Rights: A New Institution for New and Uncertain Times” (2007) Industrial Law Journal 141
- ^ This has been in decline recently; in 2005 the Commission for Racial Equality only funded three cases, CRE, Annual Report 2005 (London: CRE, 2006) whereas up to 1984 it was funding one fifth of all claims.
- ^ Roberts v. Hopwood [1925] AC 578
- ^ Roberts v. Hopwood [1925] AC 578, 594; this reversed a Court of Appeal judgment in favour of the council workers, led by the more formidable mind of Atkin LJ
- ^ website for decision text
[edit] References
- Hugh Collins, Keith Ewing, Aileen McColgan, Labour Law, Text, Cases and Materials (2005) Hart Publishing ISBN-10: 1841133620
- Simon Deakin, Gillian Morris, Labour Law (2004) Hart Publishing
- Lord Wedderburn, The Worker and the Law (1986) Sweet and Maxwell ISBN-10: 0421370602
[edit] External links
Please note, the legislation listed below goes in order of European directives, followed by UK legislation and secondary instruments which implement them. In the case of the Race Relations Act 1976, the Sex Discrimination Act 1975, the Equal Pay Act 1970 and the Disability Discrimination Act 1995, UK legislation came first, and in many instances goes further than the minimum requirements which European harmonisation aims at.
- Non-permanent workers
- Directive 97/81/EC on Part time workers
- Implemented under Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551
- Directive 99/70/EC on Fixed term workers
- Proposed directive on Agency workers COD 2002/0149
- Temporary and Agency Workers (Equal Treatment) Bill, text here, a proposal which has currently (13/3/2008) passed its second reading. The government has announced it wishes to find a common European solution. See also, United Kingdom Agency worker law.
- Sex
- Directive 97/80/EC, on the burden of proof in sex discrimination claims.
- Treaty of the European Community, whose Article 141 address equal pay between men and women. Article 13, introduced by the Treaty of Amsterdam in 1996, is the basis for Directives 2000/78/EC and 2000/43/EC
- Equal Pay Act 1970 as amended by the The Equal Pay Act 1970 (Amendment) Regulations 2003 SI 2003/1656
- Directive 2006/54/EC, on the equal treatment of men and women in employment regarding the definitions of direct and indirect discrimination, harassment and provisions on maternity. It comes fully into effect in August 2008, and just does a consolidating job and repeals a number of previous Directives, including 76/207/EEC and 2002/73/EC.
- Race
- Directive 2000/43/EC, the "Race Equality Directive", which harmonises European rules on discrimination in "race, ethnic or national origin".
- Race Relations Act 1976, amended by the Race Relations Act 1976 (Amendment) Regulations 2003, SI 2003/1626. Note, as a result of the amendments, the RRA 1976 has different tests for "colour and nationality" to the provisions on "race, ethnic and national origin".
- Religion, age, orientation and disability
- Directive 2000/78/EC, the "Employment Equality Directive", which spurred the implementation of regulations in Britain prohibiting discrimination on grounds of religion or belief, age or sexual orientation.
- Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263
- Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1660
- Employment Equality (Age) Regulations 2006, SI 2006/1031
- Disability Discrimination Act 1995 n.b. the way this works was substantially amended (and not yet updated on any publicly available record, i.e. OPSI or Statutelaw.gov.uk. The amendments can be read under...
- Trade Unions
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