Equality Act 2010: Achievement of Equality for the Disabled Employees - Coursework Example

EQUALITY ACT ACHIEVEMENT OF EQUALITY FOR THE DISABLED EMPLOYEES The equality Act is the main legislation governing discrimination in the workplace in the UK. The act brought together different discrimination provisions and harmonized them through the concept of protected characteristics that encompasses the old grounds that prohibits discrimination that includes disability, age, religion or belief, race and sex. In the past, disabled people were seen as a burden and considered unfit for work. They were categorized as “lunatics” and “idiots" hence they were segregated from the community. Regard discrimination on the grounds of disability, the act has achieved much in strengthening the law that prohibits discrimination against disabled employees, compared to the past legal framework. However, in practice, the act has not provided equality for disabled employees as per its goals and objectives due to the limitations inherent in the legal framework of the act. Therefore, unless, the legal framework is revised, the act will not optimally serve its intended purpose and discrimination will remain a challenge (Fredman, 2011). Achievements of Discrimination Act of 2010 The act has undisputedly been successful in reinforcing the law on disability discrimination. The provisions of the act have had both intermediate and practical impact on employers, and compelled them to review their old policies and procedures. The act, for the first time, made indirect disability discrimination illegal. This increases the potential liabilities an employer may encounter. Indirect discrimination can be used to challenge procedures and policies such as lack of management procedures which might have a substantial effect on disabled employees (Hrmagazine.co.uk, 2014). The equality act also replaced the old provisions prohibiting discrimination on the grounds of disability with a new protection from disability discrimination. A disabled employee currently has protection from unfavourable treatment such as disciplinary proceedings because of something originating from their disability, such as long-term absence. It is, therefore, easier for a disabled employee to succeed with this form of claim than under the past law, where the employee was required to identify a comparator. The employers will be held liable only if they are aware or can reasonably be expected to be aware that an individual employee was disabled (Hrmagazine.co.uk, 2014). In the case of Gallop v Newport City Council (2013), the court of appeal held that the employer could not justify disability discrimination claim made against it on the grounds of lack of knowledge that the employee was disabled when it unquestioningly adopted the judgment of its occupational health adviser stating that the employee was not disabled. The court ruled that until the disability of an employer is determined by a tribunal, the reasonable employer should make its own judgment on whether an employee is disabled or not. It cannot simply rubber stamp the adviser’s judgment (Employmentcasesupdate.co.uk, 2014). Another area in which the act has succeeded is the establishment of prohibition on pre-employment health questions, excepted in particular prescribed situations. Therefore, employers who previously incorporated health questionnaires in their standard recruitment procedures had to think critically on how to deal with this new provision. The risk is in the fact that if a job applicant brings a claim of discrimination, for example, they were not given the job, because the employer relied on information obtained by an illegal pre-employment enquiry, the obligation is on the employer showing that he/she has not discriminated against the job applicant on the basis of their disability (Hrmagazine.co.uk, 2014). The Failings of the UK Equality Act 2010 Formal and Substantive Equality A report by the National Equality Panel show the magnitude of the discrimination problem in the UK. In the recent past, there has been no rise in the representation of the disabled and other vulnerable groups in the UK workforce. According to the report, disabled people probability of finding a job continues to be three times than that of their able-bodied equivalents. The ultimate goal of the equality act is to achieve equality within the UK workforce. There are several methods towards achieving this. The concept of formal equality is one of consistency, based on the equal treatment principle. Its aim is to eliminate unfair treatment by according equal treatment to all individuals This is the main approach adopted by the UK anti-discrimination law covered by the Equality Act of 2010 (Hills et al., 2010). There are conceptual arguments in favour of the formal equality approach which includes the primacy on individuals, state neutrality and impartiality. However, the formal equality approach is criticized because it does not take to account the realities experienced by disadvantaged groups such as disabled employees. Treating everyone the same can lead to some forms of underlying discrimination being overlooked. The different needs of different social groups, the disabled employees included, cannot be accommodated if all persons or groups are treated the same. The adoption, in the UK of this restrictive formal equality approach, might explain why there has been no substantial improvement in relation to the discrimination disabled employees and other disadvantaged groups who all have very different needs in relation to employment resulting different issues as well (Thwaites, 2014). Fredman and several other academics advocate the adoption of substantive equality approach. This approach targets disabled employees and other disadvantaged groups to achieve equality. The approach takes account of past discrimination and looks to the law to rectify the results of this discrimination. It is inconsistent with the equal treatment principle but academics argue that preferential treatment of the disabled employees and other vulnerable groups can be justified because it is essential to remedy past discrimination that affected these groups, in order to achieve equality. They advocate the use of proactive measures. Substantive equality approach encompasses two major concepts, “equality of opportunity” and "equality of results." Equality of opportunity aims at providing fair and equal starting point for all people. It requires removal of hindrances to encourage participation from vulnerable groups (Fredman and Spencer, 2006). However, equal opportunity may not necessarily equip individuals to take advantage of available opportunities. For example, educational qualifications (can be a barrier) might be relaxed, but the disabled and other groups may still lack the necessary practical experience to do the work, and may therefore be unsuitable for the specific role. The success of the principle of equal opportunity is, therefore, limited unless appropriate resources are provided to the disabled people to put them in a position where they are able take advantage of opportunities. The principle of “Equality of results” tries to provide a remedy for the disadvantages encountered by disadvantaged groups. The past discrimination perpetrated against disadvantaged groups in Britain can only be rectified by adoption of equality of results approach that will include proactive measures being used by employers (Thwaites, 2014). The equality act is a major step towards achieving equality in UK because of its wider scope and simplified structure. However, the underlying principle of formality remains unchanged thus limiting its effectiveness in addressing the equality problem due the setbacks of formal equality approach discussed above (McColgan, 2011). The Complaints Led Process Under the old law, discrimination issues were challenged by way of employees or prospective employees filing complaints against their employers or prospective employers under a reactive complaints-led, anti-discrimination process. This is the same reactive process used by the Equality act 2010.The employees or prospective employees bring claims before employment tribunals challenging an employer’s alleged discriminative act. The first setback of the complaints-led process is its individualistic nature. There must be individual victims facing discrimination (such as disability discrimination), and the responsibility is on the victim to challenge the discrimination so that a step towards equality can be taken. Consequently, disabled individuals who feel discriminated against have to think carefully about taking their complaints to employment tribunals as this can be very demanding in terms of their time and emotions. Consequently, many victims might be discouraged from filing a claim due to the stress involved and they may have to accept that they have been discriminated against and just move on while their employers get away with it and possibly continue discriminating against other employees (Thwaites, 2014). The other setback of the complaints-led process is that it is a mandatory prerequisite to identify a specific perpetrator. Essentially, discrimination is often not the fault of a particular individual, but inherent in the institutional culture of an organization. Even if a disabled person, or another disadvantaged person as specified in the act, succeeds at an employment tribunal, this will only provide a remedy for that one individual instead of addressing the systemic issues within the organization. This was the case before the new equality Act 2010 and the act did not change this. Under section 124 of the act, tribunals are allowed to make recommendations to employers to correct their wrongs. However, since the worst penalty for employers who fail to comply with these recommendations is a mere increase of compensation, this is not an effective instrument by which to eliminate systemic equality issues within the organizational structures (Fredman, 2011).The complaints led process, therefore, only solves the inequality issues arising from individual employer’s acts of discrimination (if victims actually file complaints).It is insufficient for solving equality issues deep rooted in the organization (Thwaites, 2014). Another limitation of the complaints led process is that it presumes that employers will be so afraid of employees taking claims to the employment tribunals(particularly where an action has been brought against them in the past), that they will be motivated to voluntarily assess and improve or update their practices and policies on equality. However, in reality, the fact that the nature of discrimination claims is adversarial makes employers see equality as a cause of conflict. Rather than being motivated to enhance their practices to achieve equality, claims or fear of claims by the disadvantaged employees can make the employers protective and resistant to change (Lockton, 2013). The Tribunal System Despite the significant discrimination problem in the UK, given that the disabled and other disadvantaged groups are underrepresented in the workforce, the Employment Tribunal statistics shows that only a small number of claims is brought in tribunals. Apart from the process being demanding on part of the victims in terms of their time and emotions, several other reasons explain the low number of claims. Firstly, making a claim to a tribunal is a lengthy process. For instance, a report in 2003 said that a pay claim could take as long as eight to ten years from commencement to finish. Secondly, claimants bear their own expenses. This might deter victims from making claims since compensation awards are usually low such that even a successful claim could lead to financial loss. In the case of Crossland v OCS Group UK Ltd and Anor, the court of appeal held that an employment judge had not made a mistake by ordering a diabetic security guard to pay a deposit/advance as a condition for proceeding with his reasonable adjustment claim (Employmentcasesupdate.co.uk, 2014).Considering these factors, it is possible to explain why there are very few claims about discrimination made to employment tribunals (Thwaites, 2014). Statistics further show that, other than a small number of claims made, the number of successful claims is also small. In 2009-2010, only 3% of disability discrimination claims succeeded at the tribunal. This fact was worsened by evidence, which showed that a substantial number of repeated alleged discrimination perpetrators could be identified through a search of judgments by Appeal Tribunal. Among the offenders were large companies with thousands of workforce. It is likely that these employers in view of the low success rates of discrimination claims continue to discriminate against disadvantaged employees or potential employees; because they are they are less likely to be found guilty by the tribunal (Thwaites, 2014). Several explanations have been made for the low success rates of claims in employment tribunals is obtaining evidence. Relevant evidence is, usually, in possession of the employer and it is not accessible to the claimant. Research shows that claimants with legal representation have higher chances of succeeding in a discrimination case, not just because the legal representative has expertise in the procedure and the relevant legislation, but also because they are more skilled to get evidence from the defendant. The challenge faced by claimants is that they may not afford to hire a legal representative (Fredman, 2011). There is no legal aid provided to the claimants for representation at the tribunals, and claimants are less likely to be offered a damages-based or conditional fee agreement by a legal representative unless there is a higher possibility of a large compensation award. The Equality & Human Rights Commission (EHRC) was mandated to provide financial assistance for claimant’s legal representation under section 28 of Equality Act 2006. However, budgetary constraints on the EHRC make it likely that only few claimants receive financing (McColgan, 2011). Ultimately, the Equality act of 2010 brought advances in equality law, making it easier for the disabled employees to seek justice, compared to past law. However, the act has not optimally achieved equality for the disabled employees because of the approaches it employs in pursuit of equality. The act’s complaints-led process under the formal equality approach is very problematic because it focuses on individual complaints rather than addressing systemic inequality issues in the organization. In addition, the tribunal system is very demanding for the claimants and acts a as a deterrent for making complaints, thus, necessitating adoption a substantive implying changing to a proactive model instead of reactive or complaints- led model. Such a model would require employers to take proactive measures. Reflective Journal I was acquainted with the topic, “discrimination in the workplace” since it is a dominant topic in the media and I have heard a friend complain that she suffered discrimination while applying for a holiday internship because she is a female. However, I was not familiar with the legal aspects applicable. This was, therefore, a crucial topic to me, and I was attentive to grab every concept up to the last lecture. I learnt that the UK law protects individuals with certain characteristics from discrimination in the workplace. It was interesting to learn that discrimination does not necessarily have to be direct and obvious. It can also indirect, in form of harassment or victimization. I appreciated the advances the UK Law has undergone such as consolidation of several past laws on discrimination to one harmonized law under the Equality act of 2010. Exploration of case laws and using the previously learned concepts to determine whether the plaintiff suffered discrimination stimulated critical thinking and made the topic practical. The Buzz sessions were the most interesting part of the lectures. Sitting in groups and discussing a concept enhanced my retention capacity and made the lecture lively. The concepts learned will definitely go a long way in my future professional life as an employer or an employee. It was quite an insightful learning period. I intend to do further research on the topic and interact with legal professionals in an effort to acquire deeper knowledge on the topic. Word count: 2500 exclusive of citations Bibliography EMPLOYMENTCASESUPDATE.CO.UK, (2014). Gallop v Newport City Council [2013] EWCA Civ 1583. [online] Available at: http://www.employmentcasesupdate.co.uk/site.aspx?i=ed19473 [Accessed 1 Nov. 2014]. FREDMAN, S. (2011). Discrimination law. 2nd ed. Oxford [England]: Oxford University Press. FREDMAN, S. and SPENCER, S. (2006). Delivering equality: towards an outcome-focused positive duty. Submission to the Cabinet Office Equality Review and to the Discrimination Law Review. HILLS, J., BREWER, M., JENKINS, S., LISTER, R., LUPTON, R., MACHIN, S., MILLS, C., MODOOD, T., REES, T. and RIDDELL, S. (2010). An anatomy of economic inequality in the UK: Report of the National Equality Panel. Centre for Analysis of Social Exclusion, London School of Economics and Political Science. HRMAGAZINE.CO.UK, (2014). HR Magazine - The Equality Act: one year on. [online] Available at: http://www.hrmagazine.co.uk/hro/news/1020426/the-equality-act [Accessed 1 Nov. 2014]. KELLY, D. and KELLY, D. (2011). Business law. Abingdon, Oxon: Routledge. LOCKTON, D. (2013). Employment law. Abingdon, Oxon [UK]: Routledge. MCCOLGAN, A. (2011). Equality Act 2010. Liverpool: The Institute of Employment Rights. THWAITES, L. (2014). British Equality Framework is Incapable of Achieving Equality in the Workforce, The. NEL Rev., 2, p.137. Read More