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The British labor law of the equality bill

2020-03-13 来源: 51Due教员组 类别: Paper范文

下面介绍一篇关于人力资源管理的优秀范文,这篇论文主要描述的是英国劳动法中的平等法案是英国劳动人民长期以来与英国利益阶级斗争争取来的结果,为英国的劳动人民解决了在劳动中的种族歧视、性别歧视、残疾人歧视、年龄歧视、宗教信仰歧视、性取向歧视等问题,平等法案对于英国人而言是一个伟大的成就。一起来看看吧!

The British labor law of the equality bill

Employment Law: Hepple notes that the Equality Act 2010 is “a major landmark in the long struggle for equal rights” . Critically consider the validity of this argument in the employment context, making reference to case law and academic commentary

After more than one decade campaigning, was discussed by social interests groups, equality specialists, and other human rights organizations, the Equality Act 2010 in Britain was finally enacted and brought into operation from October 2010. Except Northern Ireland, England, Wales and Scotland are all covered by this Act. The Act aims to achieve an equity law which is harmonious and can be accepted by most social interest groups, it also expresses equal right of all human beings, equal protection from discrimination, and full protection to all activities in this regard. 

The Equality Act 2010 is part of fifth generation of anti-discrimination legislation in Britain, which is also an outcome of struggles between social interest groups for a long term. (Abrams, P., 1982: 15) The first generation tried to deal with racial discrimination but only covered in public places; the second generation extended the protected areas to goods and services, housing, employment to respond the long struggle of the trade union, feminist movement, and the Labour and Liberal parties; the third generation extended coverage to discrimination on grounds of sex and disabled people; in the fourth generation, the protected characteristics extended to age, religion or belief, sexual orientation. The Equality Act 2010 moves forward and starts a new period of anti-discrimination legislation in Britain. The Act didn’t change the laws against discrimination; it simplified complex area of law and numerous Acts and Regulations, and put them together. The Equality Act 2010 makes anti-discrimination legislation more accessible, which is a great achievement. 

In 2008, the Equality Rights Trust published Declaration of Principles on Equality, it states the general principles of quality. In Principle 5, it states the protected characteristics and only nine of them are covered in the Act.

Because of reasons relating to the age, treating people less favourably is regarded as age discrimination. In James v Eastleigh Borough council [1990], the plaintiff was an old man over 60 years old, who had to pay 75 pence to go swimming; and his wife with same age was free of charge. The reason why his wife can be admitted free resulted from the different pensionable age of men and women in Britain. The plaintiff claimed discrimination; but Sir Nicolas Browne held that, it was not sex discrimination, because “men and women applied a condition equally”, even in this case, the man was treated less favourably compared with his wife for the reason relating to his age. This case attracted attention in regard to retirement age which is still under discussion today. O’Connor v Lidl Ireland GmbH [2005] is a typical case of age discrimination. The company Lidl Ireland GmbH set a threshold for the potential employee that is “not more than 2-3 years’ experiences in a commercial environment”. Such criteria actually established an indirect discrimination on the grounds of age, just like views held by the Quality officer, because older experienced people were excluded. In the 21st century, discrimination on grounds of age attracted much more attention and was reflected in cases such as Byrne v FAS [2002], O’Neill v Board of Management, St Gabriel’s National School [2005], Delane v Board of Management, Drumshanbo Central National School [2004], etc. In 2006, the Employment Equality (Age) Regulation 2006 was enacted to protect people from age discrimination, which was embodied in the Equality Act 2010. Regulations refer to age in the Act are meaningful, even though some of them are controversial, for example, the mandatory retirements of age 65. Broadly speaking, it makes sense because it provides more opportunities to young people and helps to balance the interests of different social groups. 

Disabled people are normally with a physical or mental distress, and their daily work is adverse affected by the disability. In Clark v TDG LTD [1999], the employee Clark was injured in a frozen warehouse, and was then dismissed by TDG Ltd. Therefore Clark claimed that the dismission was a direct discrimination on grounds of disability. The former Lord Justice of Appeal, Mummery LJ, did not fully support Clark’s claims. In Disability Discrimination Act (DDA) 1995 it drew no direct or indirect discrimination distinction. House of Lords expressly disapproved such an idea in  Lewisham LBC v Malcolm and EHRC [2008]. In Coleman v Attridge Law and Steve Law [2008], discrimination on grounds of disability extended to cover un-disabled people who have relations with disabled people. Disability related to discrimination from the DDA 1995 was also replaced by the Equality Act 2010. The Act does not expect disabled people to be treated the same way as those who are not disabled; it recognizes the special needs of disabled people and supports the favourable treatment to them. The Act requires “substantial disadvantage” of disabled people, taking it as a prerequisite to make reasonable adjustments, and no less than six procedures are required to ascertain the real circumstances of disabled people. 

People change their sex by surgery are considered as gender reassignment. In a long period of time, whether the gender reassignment should be protected by law or not was controversial in the U.K. In cases related to gender reassignment, the opposite sex was always taken as the comparators. As for transsexuals, to take the gender before the surgery, or take that after the surgery as the comparator, the law did not make it clear until in P v. S and Cornwall County Council [1996]. In this case, the plaintiff was a manager of a company, and he was dismissed a year later because he was found planning to have the transgender surgery. In this case, claim of direct discrimination on grounds of gender reassignment was supported by European Court of Human Rights, and it said since it is direct discrimination, no need to take the opposite sex as the comparator. It was confirmed that, people who conducted transgender surgeries, in the process of transgender surgeries, or will have transgender surgeries, are all under the protection of the law. The Equality Act 2010 protects gender reassignment. Someone concerns definition of gender reassignment in the Act may be narrower than gender identity. Gender reassignment protects person who will be a transgender, or in the process of transgender. It is worth noting when a person’s gender identity is different with their biological sex, the dressing or behaviors of these persons are inconsistent with social gender norms. Can these persons be protected on the grounds of gender reassignment? The Act doesn’t make it clear. 

Treating people who married obviously less favourably than those single people with the same gender is discrimination on grounds of marriage. For instance, the married people failed to get a job because he/she got married is a typical example of marriage discrimination. Marriage discrimination also refers to some requirements which seems to be fair enough for people who married and unmarried, both male and female are included; however the fact is that those requirements are superficially fair and apparently disadvantageous to those married people. With regard to the protection of pregnant woman, in the U.K., laws didn’t protect pregnant woman from dismissing or being treating less favourably in the early days because male cannot bear a baby. In Hayes v. Malleable Working Men's Club & Institute [1985], the court once argued that pregnant female workers shall be compared with their male counterparts who have suffered from the chronic diseases, namely, in the case that employers dismissed male employees who asked for long-term sick leave because of their chronic diseases, the dismissal of female pregnant employees who asked for long-term maternal leave shall not constitute discrimination. The pregnant discrimination did not need to choose comparators until the occurrence of the Webb v. Emo Air Cargo (UK) Ltd. (c-32/93) [1994]. Race, religion and belief are also important protected characteristics in the Equality Act 2010. Relevant discussions could be found in Showboat Entertainment Centre Ltd v Owens [1984], Redfearn v Serco Ltd [2006] EWCA Civ 659, and Race Relations Board v Applin [1975] AC 259, etc.

In the Equity Act 2010, four basic forms of discrimination are stipulated, those include: direct discrimination, indirect discrimination, harassment and victimization.

The direct discrimination is the most apparent employment discrimination in terms of form or surface, namely, the employer takes law-forbidden issues, like gender, pregnancy, and marital condition etc. as part of his employment strategies to make the employees fall into unfair treatment. If an employer explicitly rejects hiring female employees in a recruitment advertisement, this action will cause direct discrimination. The identification standard of direct discrimination was settled in R v. Birmingham CC exp EOC [1988], and further strengthened in James v. Eastleigh Borough Council [1990]. Indirect discrimination refers that the occurrence of discrimination is not from a person’s conspicuous discriminatory behaviour. Although some required regulations, standards or practices seem to be applicable to all workers, the applicable result causes some specific groups in a distinct disadvantageous situation. For instance, one’s height must be above 1.7 m is seemingly applicable to both man and woman, it turns out that considerable females are excluded. There are also some other similar regulations. For example, the female workers with infant children must do full-time job, otherwise they should quit their jobs or the part-time workers will be preferential layoffs. In Mandla v. Dowell Lee [1983] judged by the House of Lords, the word “able” in the term “able to conform” does not mean “able to conform physically” or “able to conform in an assumed condition”, but it means “able to conform practically” or “able to conform under the circumstance that comply with the customs and culture of the racial group of the people”. As for the indirect discrimination, the employees in a certain situation must be inferior comparing with other employees. In order to prove it, the victims have to choose the appropriate comparators, and the appropriate comparators should be all the people who are qualified to apply the position. Besides, it is necessary to use statistical data and through data model to visually prove the existence of discrimination. Such an idea was reflected in R v. Secretary of State for Employment [2000]. 

Harassment did not define clearly for a long time in the UK which was only considered as a kind of damages; employees need to give evidence as the required proof. After Porcelli v. Strathclyde Regional Council [1986], harassment, especially sexual harassment became a form of direct discrimination. In the Equality Act 2010, it provides a single and uniform definition of harassment; it also made a big progress to define three types of harassment in British law. The first is stipulated in Section 26 (1) in the Act, it covers unwanted conduct purposely harm persons’ dignity or create hostile environment; the second is conduct with sexual nature or sex, which result in same bad effects as the first type does; the third refers to treat someone less favourably because “they have either rejected or submitted to con-duct of a sexual nature or related to gender reassignment or sex”. These types go further compared with that in EU law. But it is worth noting that in the Act, religion, belief and sexual orientation harassment are excluded. A happy change also occurred with regard to victimisation. If a person was treated less favourably because he/she takes some “protected act”, the person is eligible for claiming that he/she was subjected to victimisation. 

The Equality Act 2010 is a major landmark in the long struggle for equal rights. This Act is not merely consolidated plenty of Acts, Regulations and Cases, it also brings something new to equality law in Britain. For example, it adopts a unitary equality law which is enforced by a single Commission; it clarifies some ambiguous key concepts, such as discrimination, harassment and victimisation, making these key concepts apply to all protected characteristics; furthermore, for all protected characteristics, public authorities take positive attitudes and expand duties under the new legal framework. In the Act, some controversies remain, such as the mandatory retirement of age 65; some exceptions exist, such as limitation of harassment protection in the employment context. But just as Hepple said, exceptions had been managed by the drafters. (2011: 15) All stated above make the Equality Act 2010 a major landmark and achievement for equal rights in Britain.

 

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