ABE Principles of Business Law 2008-1

Employment Law 2: Termination of the Contract, Discrimination and Tribunals 335

G. RACE RELATIONS ACT 1976

Employment Provisions of the Act

The Race Relations Act 1976 tackles problems of racial discrimination at work in much the same ways as the Sex Discrimination Acts deal with problems of sexual discrimination at work.

Direct Discrimination

(a)Definition and Interpretation

Section 1 (1) of the Race Relations Act 1976 defines direct discrimination in the following way:

"A person discriminates against another in any circumstances relevant for the provisions of this Act if:

(a)on racial grounds he treats that other (person) less favourably than he treats or would treat other persons; or

(b)he applies to that other (person) a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other (person) but -

(i)which is such that the proportion of persons of the same racial group as that other (person) who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and

(ii)which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it applies; and

(iii)which is to the detriment of that other (person) because he cannot comply with it."

A "person" can be an individual or a group of people, such as a business corporation.

"Racial grounds" includes reference to colour, race, ethnic or national origins and nationality (Section 3(1)).

"Racial group" refers to "a group of persons defined by any reference to colour, race, nationality, or ethnic or national origins", or to any racial group into which a person falls.

Section 78 provides that "nationality" includes "citizenship".

Section 1(2) specifically refers to segregating a person from others on racial grounds as treating him less favourably than those others are treated. Hence, separate but equal treatment is classed as unlawful discrimination.

"Race" and "colour" are not problematic terms, and "nationality" and "national origin" give rise to few problems but the tribunals and courts have had problems with the concept of "ethnic origin". Basically it is a cultural distinction for a group sufficiently culturally distinct and recognisable as such. Thus while it may cover certain religions but not others, it also has been extended to culturally distinct groups which are not religious groups, such as Romany gypsies.

Questions of "race" and "religious affiliation" have provided the courts and employment tribunals with problems. In Seide v. Gillette Industries Ltd (1980) it was accepted by

©ABE and RRC

Employment Law 2: Termination of the Contract, Discrimination and Tribunals 337

(say, to be able to speak Urdu) may well exclude significantly more of one racial group than another. This has an indirectly discriminatory effect.

The critical difference between direct discrimination and indirect discrimination is that:

In the case of direct discrimination it is unlawful regardless of motive or intent;

In the case of indirect discrimination it is only unlawful if the use of the criterion cannot be justified as a requirement of the job.

Thus in the above example the potential employer would have to show that there was a genuine need for the post-holder to speak Urdu as an essential part of that job (Jones v. Gwynedd County Council (1980)).

The practical interpretation of Section 1(1) and Section 1(1)(b)(i) has given rise to immense difficulties. The main problems centre on the need for proportional comparisons between racial groups.

Panesar v. Nestlé Co. Ltd (1980)

An orthodox Sikh who wore a beard, as was required by his religion, sought a job in a chocolate factory. He was refused because the prospective employer applied a strict rule of no beards or excessively long hair, on grounds of hygiene.

The employers (Nestlé Co. Ltd) brought scientific evidence to support this claim that beards and long hair were unhygienic in the context of the food industry. The Sikh's complaint of indirect discrimination was not upheld.

Bains v. Avon County Council (1978)

A 45-year old Indian complained of both direct and indirect racial discrimination in respect of his unsuccessful application for the post of lecturer at a college. His qualifications were suitable, but he was not short-listed. The college applied an upper age limit of 35 years. It was claimed that the proportion of immigrants who could comply with this limit was smaller than native-born lecturers.

The appeal failed because:

No evidence was submitted to show that persons on the short-list were less qualified than the Indian applicant

The number of immigrants who could not comply was not considerably higher than the number of English-born persons.

(b)Discrimination by Victimisation

Section 2(1) states that:

"A person discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has:

(a)brought proceedings against the discriminator or any other person under this Act; or

(b)given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act."

Victimisation may amount to any behaviour to the detriment of the employee or applicant which is as a result of a complaint made by them either internally within the organisation, or to a tribunal, or giving evidence on someone else's behalf at such proceedings.

©ABE and RRC

Employment Law 2: Termination of the Contract, Discrimination and Tribunals 339

To comply with an order of a ministry or any condition imposed by a Minister of the Crown

To safeguard national security.

(b)Crown Employment Exemptions

In general, the terms of the 1976 Act apply to servants of the Crown and to the armed services, but Section 75(5) states that:

"... nothing in the Act shall invalidate any regulation made by a Minister restricting employment in the service of the Crown or any rule made by a public body restricting employment, i.e. discriminating against or for persons of a particular nationality, birth, descent or residence, nor by virtue of Sections 4 and 29 of the Act is it lawful for a Minister of the Crown or public body to advertise for a person of a particular nationality, etc. to fulfil a vacancy."

(c)Exemptions in Education and Training

Training bodies and employers are excluded from the Act if they have or run training facilities especially for specific racial groups to fit them for work usually not done by members of the group or whose members form a very small percentage of those engaged in that form of work. An example would be a special training course in computer applications or programming set up for West Indians in Toxteth or Handsworth. In fact, these provisions of Sections 37 and 38 are examples of positive discrimination allowed under the Race Relations Act.

H. SEX DISCRIMINATION ACTS 1975 AND 1986

Employment Provisions of the Sex Discrimination Act 1975

Broad Definition of "Employment"

The 1975 Act covers employment under a contract of service (or apprenticeship). It also covers employment under a contract personally to carry out any work or labour. Thus the Act prohibits discrimination by the employer, not only against employees, but also against independent contractors engaged personally to carry out specific work.

Section 6 of the Act makes it unlawful for a person to discriminate on grounds of sex in relation to employment at any establishment in the UK. (Remember that the Act is equally applicable to men, and also covers discrimination against a person on the grounds of his/her marital status.) An "establishment" refers to any place of work and, since the passing of the Sex Discrimination Act 1986, includes private households, undertakings of five employees or less, small undertakings and business partnerships.

However, discrimination is allowed, in favour of the employment of a man or woman in cases where sex is a genuine occupational qualification.

Genuine Occupational Qualifications

Similarly to the Race Relations Act, the employer must prove the existence of these exceptions. In relation to sex discrimination they are:

Authenticity and physiological requirements

Decency and privacy requirements

Live-in accommodation is provided where it would be impracticable to provide separate accommodation for both sexes

The nature of the establishment provides for one sex in a caring capacity

©ABE and RRC

Employment Law 2: Termination of the Contract, Discrimination and Tribunals 341

What happens in practice is that the woman claimant must be able to prove (a) and

(c). If she is successful, then the employer must prove justification under (b).

"Can comply with" has been construed by the courts as meaning "can comply with in practice". Thus, it is not enough for an employer to argue that it is technically feasible for a woman to comply if large numbers of women cannot, in fact, comply.

Examples of indirect discrimination cases in the case of sex discrimination include the following.

R. v. Secretary of State for Employment Ex Parte Equal Opportunities Commission (1994)

Prior to this case employees who worked for less than 16 but more than eight hours per week could only obtain protection against unfair dismissal and redundancy after they had been employed for five years (as opposed to two years for those with 16 hours per week or more). Those working less than eight hours never gained any employment protection. It was claimed that as about 90% of part-time workers working less than 16 hours per week were women, then this was indirect discrimination on the grounds of their sex.

The House of Lords gave a declaration that it was unlawful indirect discrimination to maintain two separate qualifying criteria for different groups for the rights to statutory employment rights.

Tickle v. Governors of Riverside C of E School and Surrey County Council (1995)

Here part-time teachers who were replaced by full-time teachers claimed that this was indirect discrimination. Part-time teachers were significantly more likely to be women than men. The effect was therefore indirect discrimination. The employers tried to justify the policy but the tribunal could not be satisfied that the replacement by a fulltimer was in any way necessary or advantageous to the employer.

Connolly v. Strathclyde Regional Council (1994)

Here refusal to short-list a candidate for a promotion was queried. One of the criteria for selection was experience, and it was conceded that this criterion alone might be indirectly discriminatory. However, as it was only one of a number of criteria it could not therefore amount to a requirement or a condition of the job. The EAT followed

Perera v. Civil Service Commission (1983) stating that there had to be a condition or requirement that barred the applicant from complying at all.

In the case of sex discrimination it is important to note that the European Union has passed a Directive on Equal Treatment of men and women at work. This Directive is just as enforceable in the UK as the 1975 Act. However, the Directive goes further than the 1975 Act and it is on the basis of the Directive that claims have been made that discrimination law should be extended to cover issues of sexual preferences and transexuality.

The European Court of Justice has ruled that a transexual is covered by the law of discrimination, and in a case relating to gays and lesbians (Grant v. South West Trains Ltd (1997)) the court has also ruled that sexual preferences are included.

Sex Discrimination Act 1986

This Act extended the provisions of the Sex Discrimination Act 1975 to private households, small undertakings and partnerships, as we have said. It also brought within the scope of the 1975 Act any provision made by an employer in relation to retirement, dismissal, demotion, promotion, transfer and training. The Act prohibits company policies which set different compulsory retirement ages for men and women in comparable positions.

©ABE and RRC

342 Employment Law 2: Termination of the Contract, Discrimination and Tribunals

The Act amended the unfair dismissal of the Employment Protection (Consolidation) Act 1978 to ensure that men and women in the same position have the right to complain to an employment tribunal of unfair dismissal up to the same age.

You should note, however, that it is possible for an employer to have a variety of retiring ages for different jobs provided there is no direct or indirect discrimination based on gender. In Bullock v. Alice Ottley School (1993) Mrs Bullock was a part-time pantry assistant at the school. She was dismissed at the age of 60 when she reached the school's retirement age, although male staff (gardeners) were allowed to retire at 65. The EAT accepted the employer's argument that the different retirement ages could be justified – gardeners and maintenance men required special skill and there were difficulties in recruiting them, which explained and justified their later retiring age.

Enforcement of the Law in both Sex and Race Discrimination

(a)Taking Action

In the first instance, cases of illegal sex discrimination are brought before an employment tribunal. An appeal on a point of law then goes to the EAT, then to the Court of Appeal and from there to the House of Lords, who may refer it to the European Court of Justice in Luxembourg. Action may also be taken by the Equality and Human Rights Commission (see below).

In the case of illegal race discrimination the cases are brought before an employment tribunal. An appeal on a point of law then goes to the EAT, then to the Court of Appeal and from there to the House of Lords. Race discrimination is not covered by European Union law and therefore cannot go to the European Court of Justice in Luxembourg. Action may also be taken by the Equality and Human Rights Commission.

In the field of employment, a claim under either Act must be made within three months from the date of the act complained of.

(b)Remedies

Court or Tribunal Remedies

If the court or Tribunal finds for the claimant (i.e. the employee bringing the action or making the claim), it will usually make three orders:

A declaration that the employee's rights have been infringed

An order for compensation

A recommendation that the employer should take action within a given period to remove the discrimination.

If the employer fails to comply, the case will go back to the Tribunal which will increase the compensation to the employee. Since 1995 there has been no limit on the compensation payable in cases of sex or race discrimination.

Equality and Human Rights Commission

The Commission was formed in October 2007 when the Equal Opportunities Commission, Commission for Racial Equality and the Disability Rights Commission merged into a single organisation. It will issue a notice requiring termination of an act of discrimination. The employer has six weeks in which to appeal. If the appeal is dismissed, the court will then issue an injunction on behalf of the Commission.

The Commission also assist applicants with tribunal cases where the case justifies its intervention.

©ABE and RRC

Employment Law 2: Termination of the Contract, Discrimination and Tribunals 343

I.DISABILITY DISCRIMINATION ACT 1995

Scope of the Act

It is not intended here to give a detailed coverage of the Act but simply to outline the structure and main duties that it contains.

The Act came into effect in December 1996 and its scope depends very much upon regulations, guidance notes and codes of practice issued through the Disability Rights Commission (now part of the Equality and Human Rights Commission). There is little case law in this area yet.

Meaning of Disability

"Physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities."

Schedule 1 clarifies the definition:

Impairment: physical and mental impairment includes sensory impairment and covers mental illness only if it is "clinically well recognised as a mental illness". This means that it must be accepted by a reasonably substantial body of practitioners that such a condition exists (Gulf War Syndrome?). Does this mean that tribunals will have to consider conflicting medical opinions on the existence of a condition?

Regulations exclude such anti-social disorders as kleptomania, addictions, pyromania and paedophilia and other personality disorders not caused by psychotic conditions.

Severe disfigurement is specifically included in the impairment and is to be treated as having a substantial adverse effect.

Long term usually shall mean 12 months or likely to last at least 12 months. Recurring conditions such as multiple sclerosis and epilepsy are treated as having an adverse effect if they are likely to recur, even though they do not affect the day-to-day activities on a permanent basis.

Day-to-day activities include: mobility, manual dexterity, physical co-ordination, ability to lift and carry or otherwise move everyday objects, speech, hearing, or eyesight, memory or ability to learn or understand.

Substantial adverse effect is intended to include anything which is not minor, but the Act is silent on this point and the situation will be covered in guidance notes.

Progressive conditions are also dealt with in the Act and those registered as disabled under the Disabled Persons (Employment) Act 1944 are deemed to be disabled by virtue of the new Act.

The Framework

The framework of the areas covered is similar to the Sex Discrimination and Race Relations Acts: employment, terms and conditions, etc., and also non-employment issues such as the provision of services.

Discrimination applies to refusal of employment to job applicants,

in the arrangements made for determining the offer of employment,

the terms of the offer,

or a refusal of an offer of employment

and discrimination against current employees,

©ABE and RRC

344 Employment Law 2: Termination of the Contract, Discrimination and Tribunals

in the terms of employment,

the opportunities for promotion, transfer, training etc.,

or by dismissing or subjecting them to any other detriment.

Provisions also exist in relation to the advertising of jobs and the Act also makes provision for the employer to be vicariously liable for the actions of the employee as in the Sex Discrimination Act 1975 and Race Relations Act 1976.

The Act covers all disabled workers – this includes part-time workers, contract workers, selfemployed staff and specialists.

Small businesses of less than 20 employees are exempt from the employment aspects of the Act.

The Act covers disabled consumers as well as employees, so it affects the providers of goods and services. They must not discriminate against or refuse to serve or provide inferior service for disabled people. The Act goes on to state that further regulations concerning premises, transport and procedures to be made accessible will be phased in over the next nine years.

Definition of Discrimination

Basically the definition of discrimination is the same as for the Sex Discrimination Act 1975 and the Race Relations Act 1976 but in this case even direct discrimination may be justified.

Under Section 5(1) a person discriminates against a disabled person if:

"a) For a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom the reason does not or would not apply; and

b)He cannot show that the treatment in question is justified."

Thus discrimination is direct in this case and the applicant has to show that the decision was not necessarily "on the grounds" of the disability but "related to" it. Thus refusal to employ a wheelchair bound applicant in a job on a second floor where there is no lift is discrimination related to the disability.

There is provision for victimisation actions but there is no provision for indirect discrimination actions.

Under the original proposals and the Bill, a number of situations were set out whereby an employer could avoid the need to employ disabled persons. Quite clearly these gave rise to significant problems of interpretation and so the Act contains only one provision in relation to an employer avoiding liability. This is justification.

The Act does not provide much guidance on what will be "justified" but the Code of Practice does. The Act says that the reason must be both "material to the circumstances of the particular case and substantial". The burden of proof is on the employer.

Requirement to Make Reasonable Adjustments

A further requirement of the Act is that an employer may be required to make reasonable adjustments, either to the physical environment of the workplace, or to working practices, to accommodate a disabled person. Failure to do so will be taken into account in considering whether or not the employer has discriminated and whether or not the employer may rely upon the justification defence. It seems there is likely to be a mechanism for some form of cost benefit analysis on the adjustments and that no employer will be expected to make unreasonable adjustments. The duty to make adjustments is not a general duty. It only

©ABE and RRC