Module: Employment Law – Formative Assignment (40%)
Thelma and Jean are both employed by High Street Dressware Limited, a shop which sells second hand clothes. George the owner of the shop has always considered himself to be ‘ a bit of a lad’ and is known for making comments about the sexual attributes of the women who come into the shop. Thelma finds this unacceptable and has asked George not to make the comments in front of her or she will leave. Despite this request George continues to make the comments and also starts to make rude suggestions about Thelma’s ‘love life’.
Jean has now told George that she wishes to ware trousers to work in the winter when the shop gets very cold. George refuses to let her do this because he states that the shop has a dress code and that skirts for women are more feminine and provide a better image for the shop. Jean does not agree with this and thinks that she can look equally smart in trousers. In addition she points out that the male assistants are allowed to wear jumpers under their suits in cold weather despite the fact that they look untidy.
Neither Thelma or Jean want to leave their jobs but seek advise on their legal position should they decide to continue to work for Geoge.
Contents
1. Introduction 1
2. Discussion 1
2.1 Employment Contract 1
2.2 Employment Rights, Duties and Liabilities 2
2.3 Sex, Race and Disability and Discrimination in the UK 3
3. Conclusion 5
4. Reference 6
1. Introduction
Thelma and Jean hold contractual employment relations with High Street Dressware Ltd and its owner George regardless of whether the contract is written or oral. Even if the contract does not include any stipulation on equal treatment this still attaches to the application of the contract by operation of law. By law, employers should treat their employees enjoying equal or equivalent position in the same manner. Jean has a cause of action against George when she asked to wear trousers as an added protection during the winter and George refused on the ground that there is dress code. This is reflected in Section 1 (1) (b) of the Act sets out the meaning of indirect discrimination. This is where an boss implements to a woman a condition or stipulation which is such that the quantity of women who can conform with it is significantly smaller than the quantity of men who can, and which the employer cannot demonstrate to be reasonable.
The situation was made worst by the George allowing male employees to wear jumpers under their suits during winter. The point here is that the guidelines made use by the employer is on face value is impartial, but in its consequence impacts more on women than men. There is an obvious difference in the treatment of male and women employees in allowing additional and change in clothing during the cold months of winter. Thelma’s cause of action is the sexual harassment she experienced from George when the latter made sexual remarks about other women and about her ‘love life’ creating an uncomfortable and degrading environment for her. Despite her verbal protest George still continued making remarks. This is reflected in Section 1 (1) (a) of the Act declares that it is unlawful discrimination for a manager to care for a worker less favourably on the basis of their sex. It is not material what the employer purpose or reason was. Even supposing their reason is benevolent, it may still possibly be discrimination. There can similarly be no defence of justification to direct discrimination. The member of staff presenting the grievance has to make an evaluation involving how she was treated and how a man would have been treated. She can either point out an actual coworker, or indicate supposedly to how a man would have been treated.
2. Discussion
2.1 Sexual Discrimination
Section 1 of the Equal Pay Act 1970 provides for the application of the equality clause to all employment relations including the treatment and work conditions of women relative to men when the latter have a similar, equal or equivalent work with the latter. The equality clause is also contained in the part 2, section 8 of the Sex Discrimination Act 1975, which states that the terms of the contract more favourable to a man relative to a woman when the woman occupies an equal or equivalent position, shall be deemed to also apply to the woman employee. Even if the terms of the contract of the women employee contain less favourable benefits relative to the men, the contract will still apply equally as the contract of the men. This is because of the attached implied terms to the contract provided for by law.
Sex discrimination in the workplace is either direct or indirect. Direct refers to the implementation of terms beneficial only to a given gender and indirect refers to the implementation of terms equally to men and women but from common practice these are detrimental to women. A case on sex discrimination (Chief Constable of West Yorkshire v Vento [2001] IRLR 124 EAT) covers the plight of a police constable who after her probationary period was not confirmed to her post. A complaint was filed in the employment tribunal and the court applied a comparator to determine if there was discrimination. There was sexual discrimination because the four male comparators with the same circumstances were confirmed to their post and there was no reasonable ground for not confirming the woman to her post.
Although there is no provision in the Sex Discrimination Act against sexual harassment case law has recognized the rights of employees against sexual harassment. The case of Reed & Bull Information Systems v Stedman (1999 IRLR 299 EAT) states that any provocative sexual remarks creating an offensive, degrading and humiliating environment constitutes sexual harassment when the woman to whom these remarks were addressed publicly express protest but the remarks still persist.
3. Conclusion
Based on the rights of employees under the contract and in statutory and common law, Jean and Thelma may file a complaint in the Employment Tribunal and cause the Equal Opportunities Commission to conduct an investigation. There are also grievance procedures under the Employment Rights Act 1998 and the Employment Act 2002 giving employees a venue to voice out their grievance and seek redress.
A lot of women may possibly be discouraged from making use of their rights under the Sex Discrimination Act, or proping up others who desire to implement their rights, for apprehension that they may possibly be victimised by their boss. The Act defends in opposition to this by causing it to become illegal for an employer to victimise a person for the reason that she has presented a discrimination claim, or provided proof in a discrimination suit, or carried out an accusation of sex discrimination.
To succeed in a victimisation case for instances with Thelma and Jean, it have to be revealed that the management of the employee was less encouraging than someone who had not acquired these steps, and that the treatment is a consequence of their trailing a discrimination suit, providing evidence or presenting accusations of discrimination. Accountability for sex discrimination typically rests with the employer, and similarly any other employee or worker who is instituted to have discriminated and for whom the manager has liability. This is recognized as vicarious liability. This envelops not only occurrences of discrimination essentially in the workplace, but may similarly broaden to out of work actions office hours.
If the supposed discrimination acquires the shape of the conduct of another worker, it is typically sensible to bring the tribunal application in opposition to the worker under consideration as well as the employer. Employers have a defence to a grievance of discrimination anchored on vicarious liability, if they can reveal that they acquired all rationally practicable strides to avert the discrimination from taking place. It is uncommon for employers to be successful with this defence. Nevertheless, even supposing that they do, the tribunal claim can be trailed not in favor of the individual worker.
Credit:ivythesis.typepad.com
0 comments:
Post a Comment