UK employment discrimination women six academic sources

UK employment discrimination women six academic sources

1600 words

Abstract

Recent reports such as those of Gender Equality Monitor and Equality and Human Rights Commission show prevalent inequality and discrimination affecting women in employment. This represents a gap in implementation and enforcement of the legal protection measures. The occurrence of discriminatory employment practices against women occur despite existence of the legislation: Equality Act 2010 (EA 2010), Work and Families Act 2006 (WFA 2006), and the Employment Rights Act 1996 (ERA 1996). It is the court’s and employment tribunal intervention that women rights are being protected.

Introduction and Background

The Gender Equality Monitor (GEM) in its 2018 report found that on average per hour men earned 17.9% more than women. Similarly, single male pensioners earned higher average weekly incomes (£233) against £206 of female pensioners in 2017/18. It terms of part-time gender pay gap, women were paid more than men, but there are large gaps in economic activity between that of men and women. Even though there has been an increase in women employment rate, the percentage of employed women was 8.9% points lower than that of men in 2018. The percentage of unemployed women or women who are not looking for work remains at 9.5% points higher than for men.

Despite anti-discrimination legislation, issues such as lack of gender pay parity continue to affect workplaces. Workplace discrimination is also found in employment terms and conditions in regard to pregnant women employee. The Equality and Human Rights Commission report of 2016 found that three in four mothers faced a negative or possibly discriminatory experience while they were pregnant, during maternity leave, or on return from their maternity leave. Then, one in nine mothers felt they were forced to leave their employment, when they were dismissed, made compulsorily redundant or felt treated poorly forcing them to leave. The report found that women in the administrative and secretarial, professional, and elementary occupation are less likely to report any kind of negative work experiences, including negative impact on opportunity status or job security; compulsion to leave employment; and negative experience related to flexible working request amongst other things. However, in a less formal but private enterprises, woman are more likely to report. For example, in caring and leisure services, skilled trades, associate, professional and technical occupation, sales and customer services, and in management, women are more likely to report compulsion to leave their jobs, negative impact on job security or opportunity,

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1. HM Government ‘Gender Equality Monitor’ (2018) accessed on 9 April 20210 .
2. Ibid.
3. Ibid.
4. IDS, Equal Pay: Employment Law Handbook (Sweet & Maxwell 2008).
5. Equality and Human Rights Commission, ‘Pregnancy and Maternity-Related Discrimination and Disadvantage: Summary of key findings’ (2016) accessed on 9 April 2021 .
6. Ibid.

financial loss, dismissal, and disagreements on the kinds of job after they return from maternity leave amongst other things.

The gap in equal treatment and barriers against reporting of discrimination indicate a lack of implementation and enforcement of the legal protection measures in place. An alternative perspective could be that of defined and followed occupation path relatable to men and women separately. The persistent gender essentialism involved most of the people adopt gender-typical paths. This is not so when upward mobility is impossible where as per the gender egalitarianism upward mobility is restricted to women who should have access to all areas of schooling and jobs. Middle-class women are found managerial and professional jobs more than the working-class women who undertake blue-collar jobs. The latter group were able to move up when they choose a “female” occupation. This perspective gives a sense of why in occupation women are less or more likely to report negative experience or discrimination.

Legislation

Section 4 of the EA 2010 provides sex as one of the protected characteristics. This means that women cannot be subject to any prohibited conducted as provided under Chapter 2 of the Equality Act 2010. Prohibited conducts are found under Section 13, which provides for direct discrimination and Section 18, which provides for pregnancy and maternity discrimination. This Act of 2010 is a consolidated legislation pertaining to anti-discrimination law that protects a range of human rights areas.

The equality and anti-discrimination provisions apply to the provision of the WFA 2006, which provides family-friendly employment policies, such as leave and pay related to birth or adoption, as listed under Schedule I, or flexible working provision provided under Section12 that employers must comply without discriminating any sex. Section 13 of the EA 2010 prohibits direct discrimination involving treating a person less favourable than another because of a protected characteristics, one of which is sex. Thus, a woman cannot be directly discriminated or treated less favourable when it comes to flexible working provisions, leave and pay related to birth, adoption, or maternity support provisions. Similar prohibition is against indirect discrimination as provided under Section19 of the Equality Act 2010 where applying a practice applicable to a man to a woman will amount to indirect discrimination.

Law provides for equality amongst men and women in regard to payment for doing 'equal work', which means works that are alike, rated as equivale and of equal value considering the level of skill, responsibility and effort, and demands of the working conditions. Women cannot be discriminated in in regard to payment terms and conditions, including basic salary and wages, pension, working hours, holiday pay, sick pay, bonus, overtime and many others. The provision of equal pay law is protected by the EA 2010 and the Equality and Human Rights Commission (EHRC) statutory code of practice on equal pay. Despite the presence of such legislation that provides a broad protection of human rights, there are

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7. Equality and Human Rights Commission, ‘Pregnancy and Maternity-Related Discrimination and Disadvantage: Summary of key findings’ (2016) accessed on 9 April 2021 .
8. Paula England, ‘The gender revolution: Uneven and stalled’ (2010) 24(2) Gender & society 149-166.
9. J Hand, B Davis, P Feast, ‘Unification, simplification, amplification? An analysis of aspects of the British Equality Act 2010’ (2012) 38(3) Commonwealth Law Bulletin 509-528
10. ACAS, ‘Equal pay’ accessed on 13 April 20210 .

prevailing cases of workplace discrimination against women. This is seen in reports mentioned earlier. Accumulative factors including social structure, occupational segregation, unequal divisions of family responsibility and discriminatory practices of employees all contribute to inequality.

Women have access to all the employment rights, which are also protected by the ERA 1996. Thus, their pay cannot be subjected to unauthorised deduction. They have a right to guarantee payment and against detriments. The rights of women not to be discriminated is applicable even before the employment. The Sex Disqualification (Removal) Act 1919, section 1 provides for removal of disqualification on grounds of sex or marriage from a woman’s exercise of a public function, from being appointed to that office; from being employed in a civil profession, or from being admitted to a incorporated society. This Act entitles an aggrieved party to complaint to the employment tribunals.

Case laws

The legal system requires a complaint of discrimination to go to the Advisory, Conciliation and Arbitration Services (ACAS). The case is brought to an employment tribunal from which appeal goes to the Employment Appeals Tribunal, the Court of Appeal and lastly the Supreme Court. The UK courts and tribunals have been enforcing the equality and anti-discriminatory laws in order to protect rights of women in employment. There are two cases that are discussed here to demonstrate how the courts and tribunals enforce protect women in employment from discriminatory practices of employers.

The 2011 case of Sivanandan & Ors concerned a sexual and racial discrimination issue and focuses on the liability of the employer or any employee acting responsible for discriminating against the woman claimant. The claimant, a race equality adviser, in mid-1999 applied for two posts with Hackney Action for Racial Equality ("HARE"). She was interviewed separately for the two posts on the 30th of June and 12th of July 1999. She was not selected for either post and hence, she brought separate claims in the Employment Tribunal against the local authority, an employee in the interview panel, the Board of HARE and the company that ran HARE. She claimed that her non-appointment was the due to discrimination. Two relevant laws were cited then – the Sex Discrimination Act 1975 and the Race Relations Act 1976. The Employment Appeal Tribunal ruled that the unlawful discrimination is a statutory tort. The ordinary tort principles were applied to measure compensation. The tribunal held the defendants as ‘concurrent discriminators’ and joint tortfeasors as they all participated in the same act of unlawful discrimination. The Tribunal cited the case of Way v Crouch, where the claimant successfully claimed sexual discrimination against both the managing



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11. S Deakin, C McLaughlin and D Chai, ‘Gender Inequality and Reflexive Law: The Potential of Different Regulatory Mechanisms’ in L Dickens (ed.), Making Employment Rights Effective: Issues of Enforcement and Compliance (Hart Publishing 2012) 116.
12. Catherine Barnard, ‘New Developments in Employment Discrimination Law’ in Roger Blanpain and Hiroya Nakakubo and Takashi Araki (eds.), New Developments in Employment Discrimination Law (Wolters Kluwer) 40.
13. Barbara Havelková and Mathias Möschel, Anti-discrimination Law in Civil Law Jurisdictions (Oxford University Press 2019) 123.
14. London Borough of Hackney v Sivanandan & Ors UKEAT/0075/10/CEA.
15. Ibid.
16. Ibid
17. London Borough of Hackney v Sivanandan & Ors UKEAT/0075/10/CEA.
18. Ibid
19. Way v Crouch [2005] ICR 1362.

director of the employing company and the company itself. The parties were held ‘jointly and severally’. Thus, in this case, Sivanandan & Ors, the employer was held primarily liable and vicariously liable. The employee tortfeasor was held to have had aided the employer. The Tribunal held both HARE and the employee jointly and severally liable.

In North and others (Appellants, a claim was brought by 251 classroom assistants, nursery nurses and support for learning assistants of the respondent’s schools employed during school term-time under terms provided by a national collective agreement, called the ‘Blue Book’. The appellants demanded to compare their terms and conditions with those of the comparators, including full time manual workers such as the groundsmen, refuse collectors and drivers and a leisure attendant who were subject to a different collective agreement called the ‘Green Book’. The appellants did not enjoy the substantial supplement on top of the basic pay that the comparators enjoyed. In this case, the Supreme Court confirmed the decision of the Employment Tribunal that the appellants were in the same employment as the comparators as the appellants demonstrated that they and the comparators were employed at the same establishments and the appellants should be under broadly terms similar to those appliable to the comparators.

Conclusion

The reports, GEM 2018 and Equality and Human Rights Commission report of 2016, show a gap in the implementation of laws protecting women from employment discrimination. Even the consolidated Equality Act 2010 is unable to bring down the inequalities. The social structure and employer’s discriminatory practices are not addressed by these law. Better judicial enforcement and a simpler enforceable legal procedure are required.

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20. London Borough of Hackney v Sivanandan & Ors UKEAT/0075/10/CEA.
21. Ibid.
22. North and others (Appellants) v Dumfries and Galloway Council (Respondent) (Scotland) [2013] UKSC 45, On appeal from [2011] CSIH 2

Cases

London Borough of Hackney v Sivanandan & Ors UKEAT/0075/10/CEA

North and others (Appellants) v Dumfries and Galloway Council (Respondent) (Scotland)

[2013] UKSC 45, On appeal from [2011] CSIH 2

Way v Crouch [2005] ICR 1362

Books

Barnard C, ‘New Developments in Employment Discrimination Law’ in Roger Blanpain and Hiroya Nakakubo and Takashi Araki (eds.), New Developments in Employment Discrimination Law (Wolters Kluwer)

Deakin S, C McLaughlin and D Chai, ‘Gender Inequality and Reflexive Law: The Potential of Different Regulatory Mechanisms’ in L Dickens (ed.), Making Employment Rights Effective: Issues of Enforcement and Compliance (Hart Publishing 2012)

Havelková B and Mathias Möschel, Anti-discrimination Law in Civil Law Jurisdictions (Oxford University Press 2019)

IDS, Equal Pay: Employment Law Handbook (Sweet & Maxwell 2008).

Journals

England P, ‘The gender revolution: Uneven and stalled’ (2010) 24(2) Gender & society 149-166 Hand J, B Davis, P Feast, ‘Unification, simplification, amplification? An analysis of aspects of the British Equality Act 2010’ (2012) 38(3) Commonwealth Law Bulletin 509-528

Reports

Equality and Human Rights Commission, ‘Pregnancy and Maternity-Related Discrimination and Disadvantage: Summary of key findings’ (2016) accessed on 9 April 2021 .

HM Government ‘Gender Equality Monitor’ (2018) accessed on 9 April 20210

Others

ACAS, ‘Equal pay’ accessed on 13 April 20210