Essays on The Effect of EU Law on Discrimination Law in the UK Case Study

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The paper 'The Effect of EU Law on Discrimination Law in the UK" is a good example of a law case study.   Every nation has its laws governing employment terms, rights of employees and the way in which people are treated or managed in their jurisdiction. Our society has different people with some having characteristics, attributes or affiliations that do not put them at an equal competitive level with others. Groups with less competitive attributes need to be considered to offer them a level platform with others in their day to day activities.

Otherwise, such groups may be taken advantage of, mistreated, or undermined by others. Therefore, different nations have similar to different laws that dictate the manner in which individuals possessing protected characteristics should or should not be handled. In the United Kingdom (UK), the major legislation protecting such groups is the Equality Act 2010. The European Union (EU) lays the foundation for laws applied in its member countries through treaties agreed upon during their conventions. The EU laws and directives on discrimination are based upon the Amsterdam Treaty of 1997 (Mercat-Bruns, 2010).

The Treaty expanded the anti-discrimination scope to include, religion or belief, sex, age, racial or ethnic origin, or sexual orientation and disability. In the newly expanded scope, the directives adopted included the Racial Equality Directive 2000/43 concerning ethnicity and race, Employment Equality Directive 2000/78 encompassing age, disability, religion and sexual orientation, and Recast Directive 2006/54 that incorporates sex discrimination during employment (Mercat-Bruns, 2010). From these directives arose discrimination grounds that were also embraced in the Equality Act 2010. This typifies the significance of EU laws on UK discrimination laws. Equality Act 2010, European Laws and their significance The Act ensures that the rights of individuals are upheld; that opportunities are available in equal measure to all; simplifies and fixes previous statutes and provides a modern framework pertaining discrimination laws (East Sussex County Council, 2013).

The Act replaced the laws on discrimination with a single Act. Public sector equality duties that included disability race and gender were replaced by nine "protected characteristics" which include disability, age, gender reassignment, religion or belief, maternity and pregnancy, civil partnership and marriage, race, sexual orientation and sex (Equality Act 2010, s. 4).

The Act also makes provisions for prohibited conduct such as discrimination, harassment and victimization. Prohibited conduct Discrimination. Equality Act 2010 s. 13(1) defines the conditions that one would be considered to have directly discriminated against another. In respect to a protected characteristic, if a person A treats another person B in a manner different from how the person A treats others, then A is said to have discriminated against B. A typical example is the case of "Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum Voor Jong Volwassenen (VJV-centrum) [1990] ECR 1-03941" where the board of management of VJV-centrum refused to appoint a pregnant woman (Curia, 2009).

This was even after the committee had deemed her the best for the job regardless of her pregnancy. A standard test is now available for ascertaining direct discrimination. This is the ‘ but for’ test that arose from the James v Eastleigh Borough Council (EBC) [1990] IRLR 288. The case involved Mr. and Mrs. James, who were both 61 years old wanting admission into EBC swimming pool. However, Mrs. James was admitted free while Mr.

James had to pay since EBC found Mrs. James’ age above a woman's pensionable age of 60 and Mr. James below an equivalent age of 65 for a man. Lord Bridge said the pensionable age expression was not as objective enough as the ‘ but for’ test, that is, “ would the complainant have received the same treatment from the defendant but for his or her sex” . The answer was no. Therefore, using the pensionable age criterion was deemed unlawful even if the motive was harmless. For the ‘ but for’ test to hold, less favourable treatment has to be established first.

The "reason why" test is invoked to define objectively the motivation of the respondent or the employer in the manner in which the alleged discriminatory act was perpetrated especially in not so obvious discriminatory acts.

References

Barnard, C., 2008. New developments in employment discrimination law. The UK report, Netherland: Kluwer Law International.

Charter of fundamental Rights of the European Union. OJ 2010/C83

Consolidated version of the Treaty Establishing the European Community. OJ C325.

Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. OJ L039.

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. OJ L303.

Employment Rights Act 1996. London: HMSO

Equality Act 2010. (c.15). London: HMSO.

Governement Equalities Office, 2013. Equality Act guidance. [Online]

Available at: https://www.gov.uk/government/publications/equality-act-guidance

[Accessed 14 March 2014].

HM Courts and Tribunal Service, 2013. Justice. [Online]

Available at: http://www.justice.gov.uk/tribunals/employment-appeals

[Accessed 17 March 2014].

Mercat-Bruns, M., 2010. Introduction to EU legislation and definitions of key concepts, Paris: CNAM Sciences Po.

Cases

British Airways v Starmer [2005] IRLR 862.

Available at: http://www.bailii.org/uk/cases/UKEAT/2005/0306_05_0607.html [Accessed 18 March 2014].

Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum Voor Jong Volwassenen (VJV-centrum) (1990) ECJ.

Available at: http://curia.europa.eu/juris/showPdf.jsf?docid=96046&doclang=EN [Accessed 19 March 2014].

James v Eastleigh Borough Council (EBC) [1990] IRLR 288.

Available at: http://www.bailii.org/uk/cases/UKHL/1990/6.html [Accessed 16 March 2014]

Ursula Vob v Land Berlin [2007] ECR 1-10573.

Available at: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006CJ0300 :EN:NOT [Accessed 18 March 2014].

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