REPORT INTO EQUAL OPPORTUNITIES AND THEIR IMPORTANCE WITHIN THE WORKPLACE.

The Equal opportunities Commission oversees and promotes the aims of this act. This act has been criticised as its provisions are complex and it can take many years for claims under it to reach conclusion

Sex Discrimination Act 1975

Outlaws less favourable treatment because of your sex or because you are married. An individual may exercise unconscious prejudices, due to their upbringing or perceptions, without being aware of the fact and this can amount to discrimination. It is important therefore that employers give training and raise awareness of the implication and effects of such behaviour. Section one covers discrimination in:

• Advertisement, recruitment and selection
• Terms and conditions
• Promotion and transfer
• Training and other workplace benefits
• Dismissal and redundancy.

Section three of the act prohibits discrimination due to marital status. Chief Constable of Bedfordshire Constabulary V Graham (2002)- Graham was an inspector in the Bedfordshire force, and married a Chief Superintendent in the same force. In May 1999 Graham was appointed as Area Inspector in the same division that her husband commanded. In June 1999 she was told that her appointment had been rescinded. It was claimed that her appointment was inappropriate given her husband was in the division. The claims of indirect sex discrimination and direct and indirect discrimination on the grounds of marital status were upheld. The Appeals board confirmed that the decision to rescind the job had clearly been on the basis of Graham’s marital status.

The act is gender based and applies to both men and women. Under Section 7 of this act we find Sexual Genuine Occupational Qualifications, which allow the employer to make certain exceptions to this, but the employer must be able to prove genuine occupational reasons (Lockton 1996). Sexual Genuine Occupational Qualifications (GCQ) sited in the act are:

• Where the nature of the job calls for a man due to physiological reasons (strength or stamina) or, for reasons of authenticity.
• If the job needs to be held by a member of a particular sex as it involves physical contact with a person in a situation they may normally object to being carried out by a member of the opposite sex; or if the work requires intimate knowledge or handling of a person. In the case of Times V Hodgson (1981) where a male supervisor, with longer service than a female counterpart, was chosen for redundancy. The reason was that all other female supervisors had left and the employers retain one to deal with the problems of the women workers, to take them to the first aid room and to take urine samples from them when they had worked with toxic substances. The tribunal held that the employer had discriminated against the man, but that GCQ existed.
• The job involves living on the employer’s premises, there are no separate sleeping or sanitary facilities and it is not reasonable to expect the employer to provide them.
• The job is in a single-sexed institution and given the nature of the establishment, the job needs to be held by a person of the same sex i.e., prison, hospital, school.
• The holder of the job provides individuals with personal services promoting their education or welfare and therefore can best be provided by a person of the same sex. For example, an employer could employ a female social worker to run a centre for unmarried mothers or women’s refuge.
• The job involves duties outside the UK in a country whose laws and customs are such that certain duties have to be carried out by a woman.
• The job is one of two held by a married couple.

 Such examples are:

• Physiological reasons-An artists model for a live drawing class can be requested to be gender specific.
• Privacy or decency reasons-An Toilet Attendant or Care Worker.
• The provision of education or welfare-Prison Wardens or teachers in a single sex school.

Race Relations Act 1976

This outlaws less favourable treatment on racial grounds, which means colour, race, nationality or ethnicity. The meaning of ethnicity or “ethnic origin” needs to be clarified. It has been held that a   group has an ethnic origin if it has the certain characteristics of a long shared history and a cultural tradition. Additional relevant characteristics are a common geographical origin or descent from a small number of common ancestors; a common language not necessarily peculiar to the group; a common religion different to that of the neighbouring or surrounding community; or being a minority in an oppressed or dominant group in a large community. It has been held in the courts that Sikhs are an ethnic group, as are Jews and gypsies, but Rastafarians have been held not to fall into what can be considered as an ethnic group.  Section one covers discrimination in:

• Advertisement, recruitment and selection
• Terms and conditions
• Promotion and transfers
• Training and other workplace benefits
• Dismissal and redundancy

Religious discrimination is race discrimination if religion and race are directly linked-e.g. Being Jewish. Section 5 of this act lists circumstances constituting Racial Genuine Occupational Qualifications (Lockton 1996);

1. The job involves participation in a dramatic performance or other entertainment and a member of a racial group is needed for authenticity.
2. The job involves participation as an artist or photographic assistant and a member of a particular racial group is required for authenticity.
3. The job involves serving food to members of the public in a particular setting. For example the employing of Chinese waiters in a Chinese’s restaurant.
4. The holder of a job is required to provide services, welfare or education to a person of the same racial group. In the case of Tottenham Green Under Fives’ Centre V Marshall (1991) the employment Appeal Tribunal held that caring for children was the provision of personal services and that 84% of the children were Afro-Caribbean or African descent, a GOQ existed and the council could restrict the job to persons of the same racial group.

Specific exemptions under this act exist, so it is still lawful to discriminate in the selection of national or local sports teams on the basis of nationality, birthplace or length or residence.

The Race Relations Code of Practise (Hall et al 2002) seeks to assist employers when recruiting. It states:

• Employers should not advertise in publications which could exclude certain applicants i.e. magazines published only in English
• Employers should avoid stipulating requirements such length of residency or experience
• Any advertisement or literature should state that the organisation is an equal opportunities employer.

Disability Discrimination Act 1995 (Amended in 1999)

This outlaws the less favourable treatment of individuals on the grounds of disability. The act covers discrimination in:

• Advertisement, recruitment and selection
• Terms and conditions
• Promotion and transfers
• Training and other workplace benefits
• Dismissal and redundancy

The Disability Rights Commission overseas and promotes the aims of this act. Under the provision of this act disability is defined as:

• Physical or mental
• Must be long-term, i.e. lasting 12 months or more
• Must affect normal day-to-day activities of the individual. These can be defined as effects on mobility; manual dexterity; physical co-ordination; continence; the ability to lift, carry or move every day objects; speech, hearing or sight; memeory or ability to concentrate, learn or understand; or perception of the risk of physical danger.

In the case of Quinlan v B& Q (1998) Quinlan underwent open-heart surgery. As a result of which he was unable to lift heavy loads that was required as a general assistant in the garden centre. He was therefore dismissed. The Employment Appeals Tribunal found that he was not suffering from a disability, as he was still able to carry smaller loads, even though he was not able to carry out the duties required of him at work.

       

Section 6(3) of the act states examples of adjustments an employer must make (Lockton 1996):

• Make adjustments to premises
• Allocate some of the employee’s duties to another person
• Alter his or her working hours where necessary
• Allow time of for rehabilitation, assessment or treatment
• Arrange training
• Acquire or modify equipment
• Arrange training
• Modify instructions or manuals
• Modify procedures for testing or assessment
• Provide a reader or interpreter
• Provide a specified supervisor.

In the case of Howden V Capital Copiers (Edinburgh) Ltd (1997) Howden suffered from sharp gripping pains, which resulted in him needing to lie down, as well as having a generally adverse effect on his well being. He was admitted to hospital several times and had 3 operations. No diagnosis or cause for the pain was given. However, the Employment Tribunal held that this could be classified as a disability, because it was clearly impairing his physical well being, and was long-term, substantial and affecting his day to day activities.

 

European Convention on Human Rights 1998

This sets out a list of civil and political rights, which all adhering governments are to guarantee. Some of the provisions are:

• The right to a fair hearing
• The right to respect for private and family life
• The right to education
• The right to freedom of thought, consiousnce and religion
• The right to freedom from unfair discrimination.

Health and Safety At Work Act 1974

Section 2 of this acts states that an employer must provide its employees with a safe working environment. Section 2(1) states that “ it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health safety and welfare of all his employees.” This means that employees should feel safe and unthreatened whilst in engaged in their normal contractual duties. Whilst the provision of welfare facilities does not immediately cause one to think of discrimination and ensuring an employee does not feel threatened the provisions of this act can be interpreted to do so.

Sex Discrimination (Gender Reassignment) Act 1999

This act recognises an individuals right to live in a gender they feel appropriate to them. The act is supported also by the Gender Recognition Act 2004, which allows people who have taken decisive steps to live fully, and permanently in their acquired gender to apply for legal recognition of that gender. Less favourable treatment of an employee or prospective employee on the grounds that they have undergone or are about to undergo gender assignment, constitutes sex discrimination. In case of A v Chief Constable of West Yorkshire Police (2002) A was born a male, but underwent gender reassignment surgery in May 1996. Since that time she has dressed and appeared as a woman. In 1997 she applied to join the West Yorkshire Police force but was told that the Force had decided not to employ transsexuals because they were unable to perform all the necessary duties. In particular they would not be able to carry out searches on individuals. A brought a claim of discrimination. The Court of appeal upheld A’s claim stating that the Force could sensibly have avoided the problem by exempting her from the requirement to carryout searches.

Protection from Harassment Act 1997

This act makes harassment of whatever nature a criminal offence. In this act harassment is defined as pursuing a course of conduct that has the harasser knows, or ought to know, amounts to harassment, or conduct that causes fear of violence in another person. Conduct includes speech. The act also allows for the person who has been harassed to seek damages for financial loss and anxiety caused by the harassment.

Employment Act 2002

This act covers women through the periods of antenatal care, care at work during pregnancy and whilst on maternity leave. It ensure that women are protected against dismissal on the grounds of pregnancy, discrimination on the grounds of pregnancy or any other detrimental treatment relating to the pregnancy. In the case of Webb v EMO Air cargo (1994) Webb was employed to cover another employee who was taking maternity leave. He was taken on 6 months before the other employee started her leave, so that she could be trained to carry out duties of the job. Two weeks after her employment started Webb found out that she was pregnant. EMO dismissed Webb, as she was not going to be available to them at a crucial time, i.e. to cover the whole period of the other employee’s maternity leave. Webb appealed to the Employment Tribunal, which supported the employers view. It held that had a, man been recruited to cover, and announced he would be on protracted leave, then EMO would also have dismissed the man. The European Court of justice overruled this finding, ruling that any dismissal relating to pregnancy was sex discrimination, and that it was wrong to make comparisons to the “hypothetical” man.

Rehabilitation of Offenders Act 1974

This act many not at first appear directly linked to discrimination but again should be considered as some less scrupulous employers may discriminate against ex-convicts. The objectives of the act seek to guide prospective employers to look at an applicant as an individual and not at their past convictions. The direct employers to:

• Focus on the individual’s abilities, skills, experience and qualifications.
• Consider the nature of the conviction, its spent status and the relationship it has to the position available
• Consider the fact that a conviction does not necessarily mean that a candidate will lack skills as many prisoners engage on educational or training courses whilst in prison.

The Chartered Institute of Personnel and Development (CIPD) has shown that of the 7.3 million people in England and Wales on the Home Office offenders list in 2003 less than 10% had convictions for violence to another person. Their research has also highlighted that of 144 Human Resource Practitioners who stated they had employed exoffenders, only 8 reported cases of reoffence. In 2003 some 33,000-prison leavers took up employment or training. Clearly there is a large labour resource amongst ex offenders and many of these have integrated into the working population so perhaps employers are best advised to consider their position and how they could be seen to discriminate against such individuals.

Employment Equality (Religion or Belief) regulations 2003

These regulations made it unlawful to discriminate against workers on the grounds of religion or belief. An individual can claim discrimination on the grounds of:

• Being treated differently on the basis of their religion or beliefs
• How the discriminator perceives their religion or beliefs

There are however, exceptions under genuine occupational requirements. The case of Khan v NIC Hygiene (2005) was the test case for this legislation. Mr Khan was employed as a bus cleaner by NIC Hygiene and applied to take all his annual leave in order to make a pilgrimage (hajj) to Mecca. He did not receive a reply to his request and his manager informed him that he could assume that leave had been granted. On his return from leave he was dismissed. It was ruled that he had been unfairly dismissed and he was awarded £10,000 compensation.  

There are two main bodies that exist to ensure that discrimination is minimised. These are the Equal Opportunities Commission and the Commission for Racial Equality.

Equal Opportunities Commission is an independent statutory body. It is independent of the government, although it is responsible to the Equality Minister. It was established as a result of the Race relations Act 1975 to work towards the elimination of discrimination on the grounds of sex and marriage and;

• To promote equality of opportunity of men and women
• To keep under review the Sex Discrimination Act 1975 and the Equal Pay Act 1970
• To provide legal advice and assistance to individuals who have been discriminated against.

The achieve its aims it

• Provides up to date advice on right relating to both employers and employees
• Runs high profile campaigns and lobbies decision makers
• Carries out relevant research and publishes its findings
• Represents employees at landmark case under the Sex Discrimination Act 1975 and the equal pay Act 1970.

Commission for Racial Equality is a public ally funded non-government body set up under the Race Relations Act 1976 to tackle racial discrimination and promote racial equality. The commission:

• Works in both public and private sectors to encourage fair treatment and to promote equal opportunities for all, regardless of race, colour, nationality or ethnic origin.
• Provides information and advice to people who think they have suffered racial discrimination or harassment
• Works with public bodies, businesses and organisations from all sectors to promote policies and practices that will help to ensure equal treatment for all.
• Runs campaigns to raise awareness of race issues, and to encourage organisations and individuals to play their part in creating a just society.
• Makes sure that all new laws take full account of the Race Relations Act and the protection it gives against discrimination.

CONCLUSION

Importance to organisations of an Equal Opportunities policy

Having gained a brief overview of the legislation covering discrimination we can see that it is a complex area. It is hoped that the case histories have given a glimpse into how cases may not necessarily be as straightforward as they appear. As well as understanding legislation members of our organisation also need to understand the area of liability. In this section I hope to indicate that even though an organisation does not directly discriminate it can still be held liable. An organisation cannot always plead innocence as it has a duty of care to employees.

Vicarious Liability

Employer is liable for all acts of discrimination- racial, sexual, harassment and bullying-committed to their employees which takes place during their employment.

So anything done by a person during the course their employment shall be treated as done by their employer as well, whether it was done with the employers knowledge or not.

Employees Liability

An employee who caries out discrimination in the course of their employment will also be personally liable.

Liability of the Employer-A defence

Where allegations of sexual harassment have not been made known to management, there was proper and adequate staff supervision, and the employers have made known their policy on equal opportunities, Employment tribunals are entitled to find the employers have proved a defence under section 41(3). This will apply to racial harassment, bullying and other forms of discrimination.

Liability of the Employer-No defence

• Failure to adopt an equal Opportunities policy as recommended by the code of practise
• Failure to ensure the policy is “ understood, implemented and observed throughout the workplace.”
• May lead an Employment Tribunal to find that the employer has no defence.

Department of Education and Employment produced literature in 1990s title Equal opportunities-Ten point plan for Employers to offer guidance.

Cases, which are examples, are:

Jones v Tower Boot Company (1996)

Jones, a 16 year old of mixed race origin, started work at Tower Boot Company. He was immediately subjected to a campaign of physical and verbal assaults from two of his colleagues. This included him being burnt with a hot screwdriver and having metal bolts thrown at his head. He resigned after 1 month and brought a claim of racial discrimination. The Employment Tribunal found that the employees had been acting within the course of their employment, and hence Tower Boot Company was vicariously liable. Therefore, Tower Boot Company was vicariously liable for the claim of race discrimination.

Chessington World of Adventure v Reed (1997)

Reed, a biological male, announced 4 years after joining the organisation that she was going to start the process of gender reassignment. Following this announcement a small minority of male colleagues subjected her to a campaign of harassment and ostracism. A series of unpleasant acts took place. Reed attempted suicide and, despite asking to be transferred on returning to work, her employer did nothing to help. Reed eventually ressigned. The Employment Tribunal found that Chessington World of Adventure was directly liable for the actions of the colleagues who had subjected Reed to the abuse. The employers argued that they were only vicariously liable for what had occurred, but the Tribunal found that they were aware of what had happened and done nothing to stop it. This resulted in direct liability.

Whilst on the subject of discrimination let us take a brief look at “Bullying and Harassment” as discrimination is often not only an isolated incident and can lead to this. Bullying is persistent unwelcome behaviour, mostly using unwarranted or invalid criticism, nit picking and /or faultfinding. It can include exclusion, being singled out and treated differently, being shouted at, humiliated, and excessive monitoring. Research done by the Trade and General workers Union revealed that from a sample of 1137 workers 78% had witnessed bullying and 51% had experienced it. The effects of bullying can be poor work relationships; low morale; lack of motivation; stress related illness; depression; absenteeism; increased labour turnover and in extreme cases, suicide. Therefore this is an area, which should be considered when we examine the importance of an Equal Opportunities policy.

RECOMMENDATIONS

Clearly, the area of discrimination is a complex area and an Organisation cannot accept itself from litigation by pleading ignorance of occurances. Therefore it is my recommendation that our organisation formulate both an Equal Opportunities policy and a Bullying and Harassment policy. In devising, or rewriting the organisations Equal Opportunities policy we should consider including: -

• Examples of discrimination
• Explain the possible effects on individuals
• State that discrimination/bullying/harassment is a disciplinary offence and will be dealt with accordingly
• State that discrimination/bullying/harassment can be unlawful
• Ensure that individuals are aware of how to complain
• Promise protection and confidentiality to those who are victims
• Emphasise that all employees are responsible for their own behaviour and actions whilst in work.

Management of all levels should be required to attend training workshops on how to identify, deal with, and handle incidents relating to this area both from perpetrators and victims. The workshop could be divided into 3 key areas:

• Importance of Equal Opportunities policy and the legislation relating to discrimination
• Bullying and Harassment-how to identify incidents and deal with perpetrators.
• Listening, counselling and conducting investigations relating to discrimination claims.

The organisation should seek to assign representatives from all levels of employees to act as counsellors to who people who potential “victims” can turn to in confidence. These representatives should undergo a training course by an external body in order to gain an understanding of the complexity and sensitivity of this area. Our organisation should perhaps follow the example of The Littlewoods Organisation who have a long-standing commitment to equal opportunities. The introduced a groundbreaking programme in 1967 to increase the representation of ethnic minority staff and followed it a few years later with a gender equality programme. In the early 1980’s a central equal opportunities department was established. Thus equal opportunities were part and parcel of the Littlewoods Organisation culture long before legislation dictated it. In 1995 they launched an “Equality means Business” programme, which aimed to ensure everyone throughout the company, from the top to the bottom, saw the importance, relevance and took ownership of equal opportunities issues. The Chartered Institute of Personnel and Development (CIPD) states that 91% of organisations have an Equal Opportunities policy and 83% have a Bullying and harassment policy.

Our organisations should hold in house briefing sessions to all employees on the nature, complexity and company’s stance on discrimination, bullying and harassment. At these sessions all employees will be issued with a copy of the organizations policies relating to this area and will be required to sign a document to confirm both understanding and receipt of the policies. Notice boards will be prominently place throughout all buildings owned or operated by the organisation to clearly display the policies and the organisations “Zero tolerance” stance on discrimination, bullying and harassment.

SIGNED

Karen L Harper   March 2005

BIBLIOGRAPHY

 -Chartered Institute of Personnel and Development web site.

 -Union of Shop, Distributive and Allied Workers web site

 -Arbitration, Concilliation and Advisory Service

Daniel, Kathy (2004) Employment Law for HR and Business Students, CIPD publishing

Law pack, (2004) Employment made Easy, Law pack publishing

Hall, Dave Jones, Rob Raffo, Carlo (2002) Business Studies, Causeway Press

Dransfield, Rob Hawkins, Steph Hudson, Frank Davies, Wendy (1996) Human Resources for Higher Awards, Heinman

Dignity at Work-A Transport and General Workers Union training course (2004)

People Management magazine January 2005