Legislative and Institutional Framework 2 Dr. David McGuire

Lecture Aims  At the end of the lecture, you will: Review the provisions of the Disability Discrimination Act 1995, Race Relations Act 1976 & Employment Equality (Religion or Belief) Regulations 2003 Understand the doctrine of Vicarious Liability Examine a range of Employer Defences to Discrimination Actions Explore the role of the Equality & Human Rights Commission

Statute Law  Race Relations Act 1976  Disability Discrimination Act 1995  Employment Equality (Religion or Belief) Regulations 2003

Disability Discrimination Act 1995  Disability is defined as “a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities”  Includes chronic fatigue syndrome, schizophrenia, rheumatoid arthritis, diabetes, epilepsy, visual impairments, impaired hearing, dyslexia, cancer, HIV, multiple sclerosis, severe disfigurement

Disability Discrimination Act 1995  4 Questions to be asked Does the applicant have an impairment which is either mental or physical? Is the adverse effect substantial, rather than minor or trivial? Are the substantial effects long term? Does the impairment affect the applicant's ability to carry out normal day-to-day activities?

Employer Duties under Disability Discrimination Act 1995  It is unlawful for an employer to: discriminate against a disabled person in employment fail to provide any necessary reasonable adjustments for disabled employees and applicants subject a disabled person to harassment subject a disabled person to victimisation because they have brought, or given evidence to information in connection with, proceedings under the DDA

Concept of “Reasonable Adjustment”  An employer must take such steps as are reasonable to prevent any arrangements they make from placing a disabled employee or applicant at a disadvantage compared to a non- disabled employee or applicant.  Reasonableness will be assessed by: The size and type of business The financial and other costs which would be incurred by the employer in taking the step The extent to which it is practicable for the employer to take the step

Examples of “Reasonable Adjustment”  Types of reasonable adjustment can include: Altering the person's working hours Making adjustments to the premises Allocating some of the disabled person's duties to another person Allowing the person to be absent during working hours for rehabilitation, assessment or treatment Giving the person, or arranging for them to be given additional training Acquiring or modifying equipment Providing a reader or interpreter

Case Law – Disability Discrimination  Cruickshank v. Vaw Motorcast (2001) Cruickshank developed work-related asthma. Moved to job as forklift driver. Needed to use forklift near area with fumes – triggered asthma. Asthma at work – but not at home. Court held this could be classified as disability  Hewitt v Motorola (2004) Hewitt had Aspergers Syndrome and claimed Motorola failed to make reasonable adjustments. Illness affected his memory and concentration making social relations Difficult. EAT held this could be classified as disability

Race Relations Act 1976  The Race Relations Act 1976 prohibits discrimination on the grounds of Colour Race Nationality Ethnic Origins National Origins  What is the difference between nationality and national origins?

BBC Scotland v Souster (2001) Souster presented Rugby Special for BBC Scotland. BBC decided not to renew his contract and employed a Scottish woman. Souster claimed he was discriminated against because his national origin was English. Scottish Court of Session held that Souster’s nationality was British but his National origin was English. His claim for discrimination therefore succeeded.

Race Relations Act 1976  Like the Sex Discrimination Act, the Race Relations Act 1976 Protects individuals from discrimination in: Recruitment and Selection Terms and Conditions of Employment Benefits, Facilities and Services to Ees Opportunities for promotion, training & transfer Dismissal, including redundancy Provision of Goods, Facilities & Services Post-Employment Discrimination

Race Relations Act – Case Law  Showboat Entertainment v. Owens (1984) Owens – white male manager or amusement arcade – dismissed for refusing to obey instruction to refuse admission to young blacks. EAT - dismissal unlawful  Weatherfield Van & Truck Rentals v. Sargent (1999) Sargent told not to rent vans to Blacks & Asians. Was told she would be able to tell race over the phone & in such cases, no vans available. Sargent was so upset that she resigned. Court held constructive dismissal on race discrimination.

Employment Equality (Religion or Belief) Regulations 2003  Religion or belief is defined as Any religion Religious Belief Similar Philosophical Belief  Reference to religion or belief also includes a lack of religion or belief (including atheism or agnosticism)  Definition of religion or belief is not precise For example: Are vegans included? This is not clear

Vicarious Liability  The doctrine of vicarious liability was described by Lord Millet in the Lister case in the following terms: “Vicarious liability is a species of strict liability. It is not premised on any culpable act or omission on the part of the employer; an employer who is not personally at fault is made legally answerable for the fault or his/her employee. It is best understood as a loss-distribution device”

Vicarious Liability  Lord Clyde in Lister case stated: “What has essentially to be considered is the connection between the act in question and the employment”  Employer may be responsible for employees acts outside the workplace – such as social events

Employers Defence  In relation to sex discrimination claims, Section 41(3) of the Sex Discrimination Act provides that an employer’s defence can include “reasonable steps” including: The provision of evidence that the existence and content of an Equal Opportunity Policy has been pointed out to staff Staff training and the adequacy of staff training

Employers Defence  In order to mitigate liability, employers may do the following Develop an equality policy and action plan Provide equality training Develop a proper complaints procedure (perhaps double-reporting mechanism) Set up monitoring mechanisms for measuring diversity and equality

Equality & Human Rights Commission  Came into being on 1 st October 2007  Vision: “A society built on fairness and respect where people are confident in all aspects of their diversity.”  Amalgamation of the Commission for Racial Equality (CRE), the Disability Rights Commission (DRC) and the Equal Opportunities Commission (EOC)

 To build a credible and independent commission  To target key equality battlegrounds  To improve life chances and reduce inequalities  To promote new understanding of the equality and human rights culture  Chairman: Sir Trevor Phillips Priorities of Equality & Human Rights Commission