Discrimination and the Law 2e

Malcolm Sargeant

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351214124
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Discrimination and the Law provides an exploration and evaluation of discrimination law, focusing primarily on discrimination in employment. Introducing readers to the concepts of equality and the historical origins of discrimination law, Malcolm Sargeant explores the wider political, social and economic contexts through which discrimination law has evolved. The second edition has been thoroughly updated and includes a new chapter considering discrimination against trade unionists, discrimination against 'non-standard' workers as well as the public sector equality duty.

The book begins with an examination of what is meant by such concepts as equality and discrimination followed by an analysis of the Equality Act 2010 and the impact of EU and international law. All the protected characteristics contained in the Equality Act 2010 are critically considered (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation). Issues not covered by the legislation such as those relating to multiple discrimination and caste discrimination are also analysed.

Important cases from the UK courts as well as international courts are considered. The book also contains an appendix with the most relevant parts of the 2010 Act. Important cases are highlighted in the text and some reflections as the basis for further discussion are included at the end of each chapter.

This is an essential introduction to the wide-ranging law relating to discrimination in the UK for law, HRM and business students.

Chapter 1
Equality

Chapter contents

1.1 Purpose

1.2 How fair is Britain?

1.3 Equality

1.4 Stereotyping

1.5 Does discrimination still take place?

1.6 The grounds for discrimination

1.7 Multiple discrimination

1.8 Discrimination outside employment

1.9 Reflections

1.1 Purpose

The purpose of this chapter is to introduce the concept of equality and to help define what is meant by the term. We will also discuss some of the causes of inequality and look at some evidence that discrimination on the basis of unfounded stereotypes continues to exist. The important but often neglected subject of multiple discrimination will also be considered. This is where someone is subject to discrimination based upon a number of personal characteristics or, indeed, a combination of those characteristics.

1.2 How fair is Britain?

The Commission for Equality and Human Rights produced a triennial review on inequality (2011c), which stated that:¹

some groups with low employment rates have done badly over the long term, especially those pushed to the margins of the labour market. For example the employment rate for disabled men without qualifications halved between the mid-1970s and early 2000s. Calls to the Equality and Human Rights Commission’s helpline also indicate that employment issues are significant for disabled people with over half of the calls in 2008–09 related to employment issues coming from this group.²

Despite some growth in their employment rates, only 1 in 4 Muslim women work, and many face practical barriers preventing them from doing so. Moreover, Black people and disabled people in their early 20s are twice as likely not to be in employment, education or training (NEET) as White people and non-disabled people. Young Muslims are also more likely than Christians to spend periods out of the labour market. Overall, a more demanding job market is less forgiving of those without qualifications.

Many barriers within employment are breaking down, for example with a growing proportion of managerial and professional positions taken by women. However, the British labour market continues to be characterised by a high level of occupational segregation. Around 25 per cent of Pakistani men are primarily taxi drivers; women make up 83 per cent of people employed in personal services; and over 40 per cent of women compared to 15 per cent of men are employed in the public sector, making women particularly vulnerable to public sector cuts.

Occupational segregation continues to feed pay differences, especially in the private and voluntary sectors where at age 40 men are earning on average 27 per cent more than women. The large proportion of women in part-time jobs also contributes to this. Occupational segregation also explains differences in illness and injury rates in the workplace, with people in manual and routine occupations being most at risk.

There are few large-scale data on the labour market experiences of lesbian, gay and bisexual (LGB) people. However, we do know that LGB adults are around twice as likely to report experiencing unfair treatment, discrimination, bullying or harassment at work than other employees. This is also mirrored in the nature of the queries received by the Equality and Human Rights Commission’s helpline, many of which relate to harassment in the workplace suffered by this group. There are even less data available for transgender people, though smaller-scale studies point towards evidence of harassment and other forms of discrimination in the workplace.

The report also stated that surveys show that we are more tolerant of difference and less tolerant of discrimination nowadays, but it also reports that what happens in the real world still falls short of the ideals of equality, such as ‘the harassment of disabled people, to homophobic bullying in schools, to stereotypes and arbitrary barriers that prevent older people from giving of their best in the workplace’.³

A subsequent review, published in 2015, reported on some progress that had been made since its previous report in 2011. This included a recognition of the issues surrounding trafficking, forced labour, servitude and exploitation. It also reported a narrowing of the gender gap in employment rates and the meeting of a voluntary target for FTSE 100 companies to achieve 25% female representation on their boards. There were, however, many challenges remaining. These included a rise in reported trafficking (and an increase in the proportion of victims who were UK nationals) and a lower overall employment rate. The review also summarised, in respect of employment, that

Men were more likely to be unemployed than women, but women were more likely to be in part-time work; the numbers of women in part-time work who wanted to be in full-time work increased;

women and people from some ethnic minorities remained less likely to be in both executive and non-executive directorships;

16–24 year olds had the lowest employment rates, and the employment gap between the oldest and the youngest age groups increased; unemployment rates increased for disabled people; unemployment rates were significantly higher for ethnic minorities; Pakistani/Bangladeshi women were less than half as likely to be employed compared with average female employment rates; Muslims experienced the highest unemployment rates, lowest employment rates and lowest (and decreasing) hourly pay rates over the period;

all age groups below the age of 55 experienced significant reductions in average hourly pay, with the biggest declines in the younger age groups; there were persistent gender pay gaps among graduates; employment and earnings premiums for training and qualifications among graduates were higher for men than for women; some ethnic minorities and disabled people experienced greater declines in average pay;

poverty rates were higher for children in households headed by someone from an ethnic minority; material deprivation for disabled people above the poverty level increased and the gap between disabled and non-disabled people of working age widened.⁴

The evidence (as we will show in subsequent chapters) is clear that many groups in Britain and the UK still suffer disadvantage and discrimination and that much needs to be done before any sort of equality can be achieved.

1.3 Equality

What do we mean by equality? Do we believe that that all people should be treated equally, or that only similar people are treated equally? Should the principle purpose of equality legislation be concerned with achieving equality of opportunity for everyone or should we be more concerned with achieving equality of outcomes? These are really important questions and the way in which we answer them will influence the sort of protection from discrimination that is extended to people.

As an illustration we can look at a hypothetical factory that has a production line predominantly staffed by female employees. The heavier jobs such as driving forklift trucks and lifting and carrying bulk items tend to be done by male employees. The ‘white collar’ part of the operation has mostly men in management positions and women doing admin/secretarial work. This is not an uncommon situation, but what is wrong with it, if anything? All the shop floor staff are paid similar rates, although there is extra pay for those doing heavier work. The management and secretarial/admin staff are on a job-evaluated grade structure and their pay is related to their performance in their jobs. All the shop floor staff are treated equally; all the management and admin staff are also treated equally.

The problem is that in such organisations women have traditionally occupied the lower paid jobs and men have occupied the management jobs, and this is still the reality in many of them. If we take the most senior jobs in organisations, namely the members of the board of directors, we can see the results of a long history of gender inequality. A review carried out by the Department for Business, called Women on Boards (BIS 2011), found that in 2010 women made up only 12.5% of the members of the corporate boards of FTSE 100 companies. By 2015 this had increased to 26.1% of board members, but the great majority of the extra women on boards were non-executive directors. The 2015 report showed that over 90% of board executive directors were still men. The 2010 review quoted research by the Equality and Human Rights Commission, which stated that, at the current rate of change, it would take over 70 years to achieve gender-balanced boardrooms in the UK.

In our hypothetical factory it is not enough that shop floor workers are treated equally. We need to ask why the heavier jobs are mainly done by men. Is it because men are stronger than women and can therefore do heavier jobs, which are often better paid? Such a view relies upon a stereotype of men and women, namely that men are stronger and women are...