INTRODUCTION
Employment for individuals is considered a source of livelihood, a means to cope in their daily lives. The wages that employment provides a breadwinner conveys the manner in which he will be able to survive the daily demands of living, particularly in financial terms. This goes to show that being employed is a necessity among individuals. Being employed denotes that an individual has a source of livelihood and is able to fulfil the demands of his life. This paper is going to analyze the case of Sarah and Tom with regards to their search for employment. It is in this context that both have disabilities that might have hindered in their acquisition of their respective jobs.
DISCRIMINATION IN EMPLOYMENT
Discrimination with regards to employment indicate a dissimilarity in treatment anchored on the personal attributes of a person, like race or sex, regardless of whether that person’s profile corresponds to the prerequisite of a specific position in the company. This dissimilarity in treatment places him or her at a drawback or constrains his or her admission to gains and chances obtainable to other members of society.
The Disability Discrimination Act of 1995 prohibits the kinds of discrimination for all employers like direct discrimination, failure to meet with the responsibility to make sensible alterations, handling a disabled person less satisfactorily, causing a disabled individual to encounter harassment, and persecution of a disabled individual.
Discrimination can in fact be direct or indirect. It is direct when imperatives and ways openly prohibit or give partiality to specific people exclusively on the foundation of their membership of a certain group. To illustrate, job vacancy messages that openly puts off submissions from married employees or from individuals over a specific age or with a particular race shows direct discrimination. These types of discrimination are anchored in prejudices and unfair discernments of the capabilities or work ethics of people acquiring to specific groups, regardless of their actual abilities and work experience. Such typecasting is discriminatory for the reason that it unconditionally forces that people from an underprivileged group replicate the features frequently attributed to people from society’s prevailing group. In accordance with the Disability Act of 1995, an employer’s management of a disabled individual adds up to direct discrimination if the handling is on the basis of his/her disability and the conduct is less constructive than the manner in which an individual not having that certain disability is (or would be) handled. This is evident in the case of Sarah when she applied in Ltd which opted to employ another applicant regardless of the fact that Sarah did better in terms of the examination despite her claim of arthritis. Similarly, the handling of Ltd is also contentious on the part of Sarah because they assumed that with her arthritis, she would not be able to carry out her job. She wasn’t even given the opportunity to prove that the condition was not affecting the applicant’s work. This is an open presentation of direct discrimination.
On the other hand employers have a responsibility to carry out sensible adjustments for disabled job candidates or staff when a rule or practice or a physical attribute of their site puts the disabled individual at a considerable drawback. Sarah could thus take legal action on the part of the company Ltd since she was not provided for with the appropriate equipment that would make her completion of the job easier. The employers on this context may not claim that it is unreasonable for them to make an adjustment since the adjustment will considerably improve the performance of the applicant, as revealed by her performance with the non-adapted (regular) keyboard. Basically, all of the companies in which Tom and Sarah have applied on are liable of discrimination. This is presented by the fact that the applicants have affirmed their disability; they have been treated less favourably as compared to the other applicants. However, aside from the condition of the applicants, the liabilities of the employers should also be taken into account in order to avert any other legal issues on their position.
EMPLOYER’S DUTY
This part will discuss the common law liabilities of the employer in order to look into the side of the employer’s case with regards to employing disabled individuals. The employer’s duty to his workers is usually addressed under four titles. These include the provisions of a competent staff, a safe place of work, proper plant and equipment, and a safe system of work. These are merely attributes of the more comprehensive duty to perceive that reasonable care for the wellbeing of employees is acquired.
Moreover, under the principle of common employment at common law a master was not legally responsible for the negligent injury brought about by the exploit of one of his employees towards a fellow-servant partaking in a common employment at the instance of the mishap. Nevertheless, the principle was done away with by the (Personal Injuries) Act 1948, s1 (1). Similarly, the employer’s duty to his workers is personal and non-delegable. He can hand over the implementation of the duty to other people, whether his workers or autonomous contractors, but not liability for its negligent implementation ([1937] 3 628)
COMPETENT STAFF
The employer has a responsibility to choose capable fellow employees, and a comparative responsibility to provide them appropriate training in the utilization of equipment. This might have been taken into consideration by the employers in Ltd when they did not acquire the services of Tom because of his psychiatric illness. This is revealed at (1951) 95 655.
On the other hand, if an employer is aware or can anticipate that the actions that are being carried out by his/her workers may bring about physical or psychiatric injury to an associate employee, it is open to question that the employer could be in violation of duty to that worker if he did nothing to put a stop to those actions when it was in his authority. This reflects the decision of Ltd on the case of Tom since the presence of the applicant as an employee might have been detrimental to the operation of the whole company. An illustration of this case is presented in (2000) 27 July.
Moreover, the non-acceptance of the application of Tom might have been based on the contemplation of the employers in Ltd and Ltd that the applicant might be subject to harassment by the other employees. This may well be for the wellbeing of the applicant. This is also revealed in (1965) , 25 May. The applicant here claimed damages in opposition to her previous employers, claiming that harassment and maltreatment by fellow-employees had brought her almost to a nervous breakdown. She argued that the defendants have to have offered realistic circumstances whereby she may well accomplish her duties, should have acquired practical measures to look after her from unwarranted intrusion by her co-workers, and had been unsuccessful to bring to bear due care and proficiency in upholding suitable discipline. It was understood by the judge that these accusations should not be stricken out; but that a further accusation that one of the defendants’ associates had been bad-mannered to her was, as grounds of action, misconceived, and have to be stricken out.
SAFE PLACE OF WORK
An employer has to acquire such measures as are reasonable to make out that the site is safe. This tenet is stated in [1945] 1 235, 236. In this case, the applicant was employed by the defendants to work in one of their shops, in which there was a line of vats holding a fluid called suds and employed for lubricating the lathes. The liquid was often trickled while being taken to the lathes, therefore causing the floor to be greasy. So as to address this hazard, labourers were employed to scrub the floor occasionally, or to place sawdust on it. Over the queue of vats was a water tap and underneath was a movable board made of wood, coined as a duck-board, which was utilized for reaching the vats or the tap. While going to the tap with the intention of cleaning a teacup for her own utilization the applicant lost his balance on the duckboard and was ill with personal injuries. At the instance of the accident, suds had been speckled over the duck-board and no sawdust had been placed on it. It was decided by the Court of Appeal that the responsibility of the employer to offer safe appliances broadens to envelop all actions generally and realistically incidental to the every day work, and, consequently, extended to the applicant’s case. This instance is also applicable to employees with disabilities. It is in this context that the employer should provide them a safe place to work regardless on their condition.
ADEQUATE PLANT AND EQUIPMENT
An employer has a responsibility of acquiring reasonable care to offer appropriate appliances and to sustain them in a suitable condition ( [1891] 325, 362). If the essential equipment is not available and this brings about a mishap he will be legally responsible, even though he is not essentially compelled to take on the most recent developments and equipment ( [1915] 734). This is reflected on the case of Sarah with regards to the companies she had applied with, Ltd particularly. The company is legally responsible to provide her with the equipment she needed in order to triggering any other forms that could aggravate her condition.
Moreover, if the member of staff would not have employed the tools if it had been provided, the employer’s breach of duty is not the grounds of harm ( [1962] 1 623). Similarly, Section 1(1) of the Employers’ Liability (Defective Equipment) Act 1969 makes an employer legally responsible if a worker experiences personal injury throughout his employment because of an imperfection in equipment granted by the employer, and the fault is ascribable completely or to a degree to the mistake of a third party, whether identifiable or not. However, this has been upturned the judgment of the House of Lords in [1959] 604.
In addition, an employer will not be legally responsible if an employee fall short in making the appropriate employment of the equipment provided for, nor where the worker acted unwisely and imprudently in acquiring the erroneous instrument for the job, presupposing that, where essential, the employee has been provided with sufficient coaching in the utilization of the equipment.
SAFE SYSTEM OF WORKING
It is an issue of fact whether a specific process needs a system of work in the concern of safety, or whether it can sensibly be left to the worker commissioned with the job. It is typically applied to employment of a usual kind where the appropriate application of managerial control would identify the system of working, provide tutoring on safety and support the employment of safety tools. ( [1943] 1 539) Even though usually thought of in the context of physical security, it is apparent that the responsibility to offer a safe system of work similarly expands to an employee’s mental health. This might have been the consideration of the employers of Tom in Ltd considering his history of psychiatric illness.
This is shown in [1995] 1 737. Here, it was decided in the QBD that where it was practically projected to an employer that a worker might be ill with a nervous breakdown for the reason of the stress and weight of his workload, the employer was under a duty of care, as an element of the duty to offer a safe system of work, not to provide the worker psychiatric harm on the basis of the quantity or disposition of the work which the worker was obligatory to execute. On the facts, before the illness, it was not convincingly anticipated to the local authority that the applicant’s workload would bring about to a substantial threat of mental illness. Nevertheless, as to the second illness, the local authority are supposed to have anticipated that if the applicant was once more caused to experience the similar workload there was a danger that he would undergo another nervous breakdown which would almost certainly finish his job as an area manager. The local authority have to consequently to have granted extra aid to lessen the plaintiff’s workload even to the detriment of some disturbance of other social work and, in choosing to carry on to employ the applicant devoid of granting valuable assistance, it had acted unfairly and in violation of its duty of care. It followed that the local authority was legally responsible in negligence for the plaintiff’s subsequent nervous breakdown and that as a result there would be decision for the applicant.
Conclusion
The case of friends Sarah and Tom at first glance presents a discrimination suit against the employers. This is because of Sarah and Tom’s cases of arthritis and disfigurement. The discussions above presented that they indeed have a claim for discrimination. Nevertheless, one must also take into account the liabilities present on the part of the employer when they are to employ such individuals. However, the two individuals must also know that their rights are protected by the Disability Discrimination Act (DDA) 1995. This Act makes discrimination on the grounds of disability unauthorized. Employers may not discriminate in opposition to a disabled individual when recruiting and employing. Where discrimination happen based on disability, this is deemed as direct discrimination and cannot be vindicated. Discrimination similarly takes place when an individual is, for a reason associated to their disability like unreasonably treated less satisfactorily than others; cause to expereience harassment. Furthermore, discrimination similarly takes place when an employer is unsuccessful in making a practical alteration corresponding to a disabled individual.
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