In many instances a person may not know that he has imposed a discriminatory policy through the use of indirect discrimination. Although he is liable for committing this crime, allowances are often made when there is clearly no intention to be discriminatory. Where discrimination is alleged and where the complainant has suffered the burden of proof rests with the defendant to show some explanation other than discrimination. E.g. Accidental discrimination means fewer damages.
The first type of discrimination I will look at is sex discrimination, which includes both males and females. The relative legislation is Equal Pay Act 1970 which encourages “equal pay for equal work” which implies and “equality clause” into all contracts of employment. There is also the Sex discrimination act 1975 it covers discrimination on the grounds of sex in the areas of employment, education, housing and the provision of services. While this act didn’t come into force until 1975 more recently it has been extended to cover transsexuals by the Gender Recognition Act 2000 which allows transsexuals who register their new gender to be treated as such e.g. if they are born male and the become female. Another act which aims to prevent sex discrimination is the Civil Partnership Act 2004 which allows same sex partners to register their partnership and receive some of the benefits of marriages e.g. taxation, inheritance and property. Example of direct discrimination include: Gill v El Vino (1983) where they wouldn’t serve a woman because she was a female. And James v Eastleigh Borough Council (1990) where two elderly people where treated differently at a swimming pool because one was female and one was male. Next indirect sex discrimination which is more subtle and includes cases such as R v Sec of State for Employment Ex p Equal Opportunities’ commission : the rule which appeared equal was that all who were part-time were treated differently to full-time, considering most women are part time due to child care this was discrimination mainly towards women. It was later held that the Employment protection (consolidation) act (1978) was incredibly discriminatory towards women since more men than women are able to work full-time. The impact of EU law must acknowledge in shaping our current legislative protection as EU law is about free trade, EU law looks at sex discrimination from an economic perspective not an altruistic one, where you can make money by exploiting women.
In the case of P v S (1996) which concerned a senior employee at Cornwall College where he was dismissed after informing his employers that he was to undergo “gender reassignment” to become female. On a reference by the industrial tribunal the ECJ held that the Equal Treatment Directive could not be confined to sex discrimination, but extended to discrimination of the soft practised here. Although the Sex Discrimination Act 1975 covers discrimination in employment, Tran sexuality is different to usual sex discrimination, if the man where to have registered his new gender the Gender recognition Act (2004) would have covered him but he was still in the planning stages. Some discrimination on the grounds of sex is lawful where the services provided are generally different from both men and women. Sex discrimination is also permitted for religion or the participants in single-sex sports or for annuities and insurance polices in which discrimination is reasonable. E.g. Women tend to live longer (life insurance), Female doctors; some women may ask to be seen by a female doctor. Females often pay lower driving insurance compared to their male counterparts.
The Race Relations Act 1976 is the relative legislation for race discrimination and covers discrimination on the grounds of race/ colour and ethnic background in matters of employment, education, housing or the provision of services e.g. hotels. The Race Relations (amended) Act (2000) was passed because of the Macpherson Report which required public bodies to become more pro-active in terms of promoting racial equality E.g. the police. Examples of direct racial discrimination include Lambeth LBC v CRE where the council advertised a job vacancy for a manager or assistant manager in their housing benefits departments, and specified that only Afro-Caribbean or Asian applicants would be considered they tried to do this because the management team would be working with people from that specific area but was still not justified because: Although a form of positive discrimination it was held to be direct discrimination. While indirect include cases such as Mandla v Dowell Lee where a Sikh boy was excluded from a school because he insisted on wearing his turban instead of the school cap. Allowing his claim that he was a victim of discrimination, the HOL said that although he could comply with the uniform rules in a physical sense the number of Sikhs who could comply was significantly smaller than the number of non-Sikhs, therefore the schools rule could not be justified due to disproportionate impact.
Other than the Race Relations Act there are a number of criminal offences linked to racial discrimination e.g. part 3 public order act 1986 creates the offence of racial hatred. The Crime and Disorder Act 1998 creates the offence of racial aggravated assault and the Religious Hatred Act 2006 creates the offence of incitement to religious hatred e.g. Abu Hamza where he said that “9/11 bombers were hero’s”
The third type of discrimination is Religious discrimination, which is controlled by the Employment Equality (Religious and Belief) Regulations 2003 which is an EU directive from the EU targeting just the UK which makes it unlawful to discriminate in the field of employment on the basis of religion or belief. E.g. some religions such as the Sikh are recognised as a racial group and therefore have wider protection under the PRA 1976. However the Equality Act 2006 has widened the law to stop discrimination against religion in the form of religions in education. Article 9 of the European convention on Human rights as incorporated into domestic law under the Rights Act 1998 can also enforce the right to religious freedom, the old law of England and Wales only used to protect Christians or Blasphemy.
Sexual orientation discrimination is the most recent to arise in the news and is covered by the Employment Equality (Sexual Orientation) Regulations 2003 following again a EU directive which makes it unlawful to discriminate in the field of employment on the basis of a person’s sexual orientation. The Equality act 2006 gives the government powers to create rules banning the discrimination on grounds of sexual orientation in relation to the provision to goods and services, meaning that hotels, GPs or anything in the public sectors cannot refuse to serve gay people or offer them a lesser services than to heterosexuals. Preddy and Hall v Bull where a gay couple where refused a room in a hotel due to the owners Christian beliefs.
Finally there is discrimination on the ground of disability and age discrimination. Disability discrimination is covered by the Disability Discrimination Act 1995 which makes it unlawful to discriminate against a person because of their disability in matters of education, employment, housing and the provisions of services. A disability maybe physical or mental and might involve mobility, manual dexterity, physical co-ordination, continence, the ability to lift and carry ordinary object, their use of speech, hearing, eyesight, memory, concentration or learning ability. The act also protects progressive illnesses that might affect the person later on in life. BUT Discrimination can be justified with disability unlike the others e.g. placing a person within a job which isn’t suitable to them. Lastly there is age discrimination which is protected by the Employment Equality (age) Regulations 2006 making it unlawful to discriminate or treat anyone differently because of his or her age in employment; some discrimination is justified to protect younger or older individuals or workers and to help integration. Another exemption would be where professional experience or seniority is needed. E.g. Most judges are of 50 years plus. An example: O’Reilley v BBC 2011 where the BBC where found guilty of age discrimination on Countryfile it was stated that if the BBC had changed the name of their program they would have won.
Over all the fight against discrimination is still continuing and but is improving substantially, academics such as Helen Fenwick have criticized the inadequacy of the anti-discrimination law that is in place today by highlighting the increasing numbers of civil remedies compared to court cases and the inadequate levels of compensation that they receive , she then goes on to say that there is little assistance for a victim of discrimination where many of the cases are abandoned half way through. In large companies or in any cases relating to employment the employers tend to always hire solicitors to aid them, whereas the applicants who are accusing them of discrimination cannot afford to pay for their own solicitor which highlights, the lack of legal aid. Simply they must fund their own case. There is also a lack of expertise that tribunal members have of discrimination cases, this is worse for applicants as the tribunal will not be much help to them.
Over the last few years the influence of EU law on British law has been pretty obvious in the terms of sex discrimination, along with the implementation of the Equality Framework Directive recently. These two measures both aid to push law in the right direction in relation to discrimination on all levels. Also the Equality Act 2006 has replaced both equal the opportunities commission and the commission for racial equality with equality and the human rights commission. This new system has powers to enforce rules and regulations to launch pfficial enquires and investigations in to cases and it can also help the individual because it can take action on behalf of the person in question, it also provies advice with a new help line being set up and the government is also working towards creating s=a signle equality legislation e.g. The Equality Act 2010 Therefore discrimination is widely prohibited amongst law in England and Wales .
