In this edition:
- Editorial: A time for Reflection?
- 2012 Human Rights Day on December 10th. Theme: My Voice Counts
- Age discrimination against job applicant not appointed to role of pizza chef
- Fifa president Sepp Blatter finally admits 'racism cannot be stopped with a handshake
- Nick Clegg announces extension of flexible working
- Equality Duty guidance for schools in England
- Research on ‘LGBT communities in the twenty-first century’
- BNP member wins European Court of Human Rights case: Will there be a 10th “Protected Characteristic”?
- Guidance for Transgender Staff and students
- New videos explore where we belong
Editorial: A time for Reflection?
As we move towards Christmas and New Year many of us take a bit of time
out reflect on the recent past and prepare for new challenges. Over recent
weeks i have been undertaking this in respect of the present and future of
discrimination law and practice. Perhaps this is a bit nerdy, after all others
many pick rather more important, day-to-day, issues to reflect on, such as will
I still have a job next year; or how are my relationships going with my
partner/children/parent(s); or how can I pay of my accumulated credit card
debts? But I’m going to stick to discrimination law and practice!
During the years 2010/11 I was pleased with the way things had gone. We
had a new piece of legislation on the statute book (the Equality Act 2010) that
consolidated and simplified a raft of previous legislation; it was passed
unanimously by Parliament and therefore had a degree of “consensus” about it,
and it pushed a few boats out in extending legitimate protection from
discrimination in some new areas (e.g. dual discrimination and third party
harassment), introduced a new protected characteristic of “socio-economic”
status (albeit only as a statutory public duty for high-level decision-making)
and introduced a new public sector equality duty across all protected
characteristics. All well and good and a feeling that we may have put previous
controversies to bed. We now have an historic “settlement” around equality law.
This would now provide new opportunities to get on with the day to day grind of
embedding equality and diversity as “common-sense” in society as a whole and in
all the institutions and organisations that make society function. We might
even make a diffidence over time in reducing or eliminating historic
inequalities in the way society functioned – improving the lot for disabled
people, Gay people, Black and ethnic minority groups, women and men (in different contexts)....
But I did not calculate into this equation an economic crisis and a new
coalition government that increasingly saw equality and non-discrimination not as
something to be proud of, to embed in a society still marred by wide
inequalities, and as a state of affairs that was fundamental to enriching
opportunities and removing unjust barriers – but rather as something to be
embarrassed about, as a “barrier” to efficiency and business development and as
“political correctness”.
I really did not expect this, particularly as the Liberal Democrats had, over many years, shown themselves to be committed to equality and anti-discrimination legislation; and even main-steam sections of the Conservative Party seemed to have ditched their knee-jerk reaction to legislation to outlaw discrimination, as part of a new 21st century modernisation of Toryism. It seemed those who might oppose initiates around discrimination and inequality would from now on be confined to the fringes of the far right.
Sadly the new government has seen as its mission to roil-back the gains
embedded in the Equality Act 2010 and to go even further in removing
opportunities for people to actually exercise any theoretic legal rights under the law they may have by
decimating access to legal representation, support and the courts themselves.
Those areas of the Equality Act that have not been enacted by the government include:
·
introduction
of the socio-economic duty
·
introduction
of protection from dual discrimination involving two overlapping
protected characteristics (such as discrimination against a Black Gay man, but
not against a White straight man – when it unclear on what basis the
discrimination may have occurred – sexuality or colour?)
·
introduction
of clear protection from third party harassment
In addition there has been a significant weakening of the legislation in
respect of the specific equality duties on public bodies, and a recent
speech by the Prime Minister to the Confederation of British Industry he
indicated he would like to reduce even further the burden (and effectiveness?)
of the general public sector equality duties. Given that these duties do
not apply to businesses I fail to see how they would be affected by this
proposal – but it seemed to go down well with them anyway!
In addition, recent government enactments include the removal of the statutory
questionnaire procedure when allegations of discrimination are being
considered (which helps everyone
involved clarify the issues and enables complainants to ask for and receive
vital information which only the respondent holds); the introduction of
significant up-front fees when lodging cases at tribunals; and significantly
reducing the funding to and role of the Equality and Human Rights Commission.
All this has been done in the name of “reducing red tape” or “reducing the
burden on business”, or “saving money” with little or no consideration to its
effects on justice, fairness or equality.
So what does all this add up to and what might the future hold?
I must say I am worried. Just simply looking at it from a quite “conservative”
stand-point, I fear that it will make things worse for both employers and employees. It makes it less likely that there will be any imperative to deal
with equality and unfairness in the workplace promptly and efficiently. There will be fewer informal early
interventions and resolutions of disputes. There will be more festering sores
going unaddressed and bad employers will get away with such poor practice more
often. In addition to bad practice being rewarded those employers who invest in
good practice to resolved such disputes early will be penalised.
The purpose of law is to provide incentives for good practice and provide
a remedy or “day in court” for victims of an actual or perceived injustice in
circumstances where their grievances do not get addressed through other means.
Remove this final stage or opportunity to achieve justice (or removal of legal
rights themselves) and it does not normally end up well – frustrations and
pressures mount in and can explode unpredictably in and out of the workplace.
This is not good!
As for individuals, so for social groups or those with protected
characteristics who suffer from discrimination. Such groups may increasingly collectively feel that they not full and
equal citizens as prospects for improvement in their circumstances diminish. History
informs us that when groups feel such injustice, and there are little or no
prospects for change (but rather a going backwards) there is the potential for social
upheaval and conflict. It most often does not end well.
The coalition government may perceive gains in rolling back the equality
agenda in the interests of “business efficiency” etc. But these will be at best (if at all) illusory,
insignificant and short-term. In the long-term however its effects may be far
more devastating – on individuals and on society as a whole.
I am not optimistic about equality issues for 2013 and into the future!
Paul Crofts
2012 Human Rights Day on December 10th. Theme: My Voice Counts
"Where we come from does not determine who we can become. What we
look like places no limits on what we can achieve. We should all have the right
to express ourselves, all have the right to be heard, all have the right to be
what we can be: To reach for the sky and touch the stars. No matter who we are,
no matter whether we are man or woman, or rich or poor:
My voice, my right. My voice counts."
Desmond Tutu, a key figure in
the defeat of apartheid in South Africa, Nobel Prize Laureate, first black
Archbishop of South Africa.
Age discrimination against job applicant not appointed to role of pizza chef
Mohammed v Bloomsbury Bowling Ltd 2200410/2012
This case serves as a reminder of the importance of having a
recruitment policy and procedure in place that is not discriminatory and properly
implemented and followed.
The tribunal made the following findings of fact. The head
chef, Mr Zorancho, saw Mr Mohammed's CV on Gumtree. As Mr Mohammed's CV showed
that he had the ability to make homemade pizzas, and the company were in urgent
need of a pizza chef, Mr Zorancho invited Mr Mohammed to an interview. Mr
Mohammed's CV did not include his age or date of birth.
There was a dispute as to what happened when Mr Mohammed met
Mr Zorancho. Mr Mohammed alleged that Mr Zorancho had asked how old he was, and
when he had disclosed his age (he was 40), Mr Zorancho had said that he had
been told by his general manager to reject Mr Mohammed because he was too old. Mr
Zorancho alleged that he had interviewed Mr Mohammed, however, as a result of
doubts about Mr Mohammed's ability to work in a busy kitchen, he had told Mr
Mohammed at the end of the interview that he would not be given the job. Mr
Zorancho admitted that he had made a joke about Mr Mohammed having grey hair
because of the stress of working in kitchens but said that this was to put Mr
Mohammed at ease. Mr Mohammed claimed that the company discriminated
against him by not appointing him to the position because of his age.
The tribunal did not make a finding of fact in relation to
the alleged instruction from Mr Zorancho's manager to reject Mr Mohammed
because of his age. However, on the basis of a number of other facts, including
Mr Zorancho's comment about grey hair, the fact that the successful candidate
was 10 years younger than Mr Mohammed and the company's contradictory and
inconsistent evidence, it found that it was appropriate to draw an adverse inference
of age discrimination. This shifted the burden of proof to the company to prove
that it did not commit discrimination. The tribunal looked to the company for
an explanation as to why Mr Mohammed was rejected and the successful candidate appointed.
It found that the company was not able to give a "satisfactory and
cogent" explanation, on the basis of evidence, of a "transparent and
coherent" recruitment process that would rebut the inference of age
discrimination. It therefore held that the company discriminated against Mr
Mohammed because of his age.
Source:
Fifa president Sepp Blatter finally admits 'racism cannot be stopped with a handshake
Fifa president Sepp Blatter
has had a rethink on his controversial view that racism can be settled with a
handshake. Blatter faced heavy criticism for his "unfortunate words"
in an interview with CNN whilst the Football Association was investigating
allegations John Terry and Luis Suarez had racially abused opponents.
In an exclusive interview with the
Evening Standard a year later, Blatter has changed his mind. “What you can do by a handshake is try and
make peace,” he said. “You cannot
eradicate racism by a handshake. To eradicate this devil is an educational
problem. The problem is, if the school is not educating, if the family is not
any longer educating, sport must educate. But sport cannot do everything.”
Source: I CARE News
Nick Clegg announces extension of flexible working
On 13 November 2012, the Deputy Prime Minister gave a speech
announcing ‘a range of new family-friendly policies to help working families’
including the right to request flexible working to all employees with 26 weeks’
continuous service with their employer.
He outlined the reasons for these changes as follows and I
have reproduced much of the speech as it addressed some very important issues
relating to gender equality:
Women who want to work, although not necessarily full time, but who
find themselves locked out of the labour market – particularly when they choose
to start a family. On rates of female employment the UK ranks 15th in the OECD.
This isn’t a new problem: despite rising since the 1960s, female employment has
stalled over the last decade.
It is, however, a problem we can no longer afford. Just as working
women drove up living standards in the latter half of the 20th Century, after
the Second World War, the evidence suggests that living standards in the first
half of the 21st Century will need to be driven by working women once again.
So this absence of women from our economy is costing us dearly. If the
United Kingdom had, for example, the same proportion of female entrepreneurs as
the United States, we would see an extra £42bn on GDP. Women in this country
are now better qualified than men. Girls do better at school; more go to
university; they are just as ambitious. And, in the words of the World Bank,
gender equality is ‘smart economics’.
It isn’t just the key to a fairer society. It’s the key to prosperity
too. So the challenge I want to address today is this: when women take a break
from work to have children, how do we give them a route back?
This isn’t about forcing mothers to work when they don’t want or need
to, but it is about giving them a real choice.
The problem comes down to a whole range of clapped out rules and
arrangements. Whether that’s the balance between maternity and paternity leave,
or the childcare that’s available, or the way our tax and welfare systems don’t
fully reward part-time work. Arrangements which assume that families are still
comprised of one bread winner and one homemaker: Mum in the kitchen, Dad in the
office. Even though the reality is that, in many families, both parents work,
often juggling busy lives, often working part-time, often without relatives or
friends close by who can help out.
So we are shaking up those various rules and arrangements – and I’ll
come onto how. But before I do, let’s just be clear on the dilemma so many
mothers – and fathers – face.
We, as a society, we have got so much better at telling young women:
the sky’s the limit. Get a job, be independent, be the boss. Run as far and as
fast as your talents can take you. Then, suddenly, when women hit their late
20s, their early thirties, despite all their earlier momentum, despite all the
endless possibility, they are suddenly stopped in their tracks. It’s like a
rubber band snaps these women back. Because, the moment they start planning a
family, their options begin to narrow.
Imagine a young couple expecting a baby, sat around the kitchen table,
planning how they’ll divvy up their new responsibilities. That is a hugely
exciting time. But that conversation can be extremely stressful too:
·
What’s
going to happen to their income, and will they manage?
·
How much
will their bills be?
·
How many
hours does that mean they need to work?
·
How does
childcare fit in?
They are about to embark on a monumental, life changing experience, yet
it’s boiled down to some very basic sums, and so many couples feel like they
are facing an impossible mathematical equation. And it’s an equation where the
answer is almost always rigged because, whichever way you look at it, the
solution ends up being the mother doing more of the caring, and the father
doing more of the earning.
She gets the year long maternity leave; after that, the expectation is
she’ll continue to be the primary carer – so she’s the one who goes part-time.
That, very often, means she ends up on lower pay, with fewer chances
for promotion, and it’s at exactly this point that the pay gap begins to widen.
Just last week two separate reports reminded us what a problem that still is.
Then, as time passes, as more children arrive, women get caught in a
kind of cycle: have a baby, work less, so earn less.
Earn less and – because childcare costs so much, because your partner
is now earning more than you – work less. Even when the children are grown up,
working full time isn’t possible for many women. With the population living
longer, we’ve seen the emergence of the so-called sandwich generation: women
who spend their thirties raising young children and their fifties caring for
elderly parents. And for single mothers it can be even harder. They have a
greater need to go to work, but much less help at home.
I don’t pretend there’s an easy answer. And if more traditional
arrangements suit a couple, they should absolutely have the right to pursue
them. But we cannot continue to shrug our shoulders at the inevitability of it
all.
Many families want and need to tread a different path. We have made so
much progress on greater equality between the sexes – especially in terms of
enshrining equal rights in our laws, and the previous Government certainly
deserves credit for that.
But we still have work to do – for the sake of men and women. It’s
heartbreaking to see fathers missing out on being with their children.
It’s heartbreaking to watch women lower their ambitions for themselves.
Equality’s promise must not end at 30.
So we have to give these parents more options; more choice; the support
they need to make the right decisions for their families.
For full speech go to: http://tinyurl.com/chgv8vq
Equality Duty guidance for schools in England
In November 2012, the Equality and Human Rights Commission
(EHRC) published ‘Public sector equality duty guidance for schools in England’.
This is a practical guide that illustrates how the Equality
Duty can help schools to raise attainment, tackle bullying and improve behaviour.
The guide features a series of short practical case studies and FAQs to help
make it more hassle-free for schools to meet their Equality Duty.
To view the guidance go to: http://tinyurl.com/cqwe4hk
Research on ‘LGBT communities in the twenty-first century’
‘Solidarity but not
similarity? LGBT communities in the twenty-first century’ by Eleanor Formby
was published in 2012 by the Centre for Education and Inclusion Research at
Sheffield Hallam University.
The term ‘LGBT community’ is increasingly used in policy,
practice and research, yet there is little explicit discussion of what the
application of the concept of ‘community’ means to lesbian, gay, bisexual and
trans (LGBT) people. This study therefore sought to examine understandings and
experiences of LGBT communities, and assess implications for (LGBT) health and
wellbeing.
For an Executive Summary of the report go to: http://tinyurl.com/cg8wruw
BNP member wins European Court of Human Rights case: Will there be a 10th “Protected Characteristic”?
Redfearn v The United
Kingdom
(Application no. 47335/06)
6 November 2012
Despite the fact
that the British National Party hate the ECRH, a member, Mr. Redfearn, has
pursued a case to it and won, at least in part, having lost a more conventional
claim under anti-discrimination legislation with the British courts. An interest
case of hypocrisy?
Mr Redfearn was
employed by Serco Ltd as a driver for less than one year. He was responsible
for transporting children and adults with physical and/or mental disabilities
on a Serco contract with Bradford Council. The majority of his passengers were
Asian in origin. He was considered a good employee and there had been no
complaints about his work or conduct. He was dismissed after it became
known that he had been elected a BNP local councillor. The dismissal was on
grounds of potential risk to health and safety, i.e. the considerable anxiety
caused to passengers and their carers discovering his BNP affiliation, and also
because of the risk of damage to Serco’s reputation and contract with the
Council. Mr Redfearn brought a race discrimination claim against Serco under
the then Race Relations Act 1976 (claiming discrimination because he is White),
which ultimately he lost in the Court of Appeal. He could not claim unfair
dismissal because he did not have sufficient qualifying service.
Mr Redfearn took
his case to the ECtHR, claiming breach of various articles of the European
Convention on Human Rights. The ECtHR
held by a majority that there was a violation of article 11. Article 11 states,
inter alia, that ‘Everyone has the right
to freedom of peaceful assembly and to freedom of association with others’. These rights must not be restricted except as
‘necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder
or crime, for the protection of health or morals or for the protection of the
rights and freedoms of others’.
The majority of the
ECHR said that UK legislation was deficient because it did not give employees
with less than one year’s service (now two years) the right to bring complaints
about dismissal on grounds of membership of a political party. The ECHR felt
that, in the absence of judicial safeguards, a legal system which allows
dismissal from employment solely on account of an employee’s membership of a
political party carries with it the potential for abuse. Political parties are
a form of association essential to the proper functioning of democracy. Domestic tribunals should at least be allowed
to decide whether or not, in the circumstances of a particular case, the
interests of the employer should prevail over the Article 11 rights asserted by
the employee. The ECHR stressed that it was not being called upon to pass
judgment on the policies or aims, obnoxious or otherwise, of the BNP at the
relevant time.
The court said the UK had to "take reasonable and appropriate measures to protect
employees, including those with less than one year's service, from dismissal on
grounds of political opinion or affiliation, either through the creation of a
further exception to the one-year qualifying period under the 1996 Act or
through a freestanding claim for unlawful discrimination on grounds of
political opinion or affiliation".
It will be
interesting to see how the British government responds to this decision. Will
it amend the Equality Act 2010 to bring in an additional protected
characteristic of “Political opinion or affiliation”?
I also wonder if
the BNP will now change its policy of opposition to the Human Rights Act, the
Equality Act 2010 and the European Court of Human Rights? To quote a famous
Chinese saying “may we live in
interesting times”.
Source:
Discrimination Law
Association
Guidance for Transgender Staff and students
Newcastle University has recently shared their comprehensive
and extremely useful guidance for Trans staff and students on their Diversity
webpage and it may well be useful to others. The webpage also includes some
useful links to relevant groups and organisations It can be found at:
New videos explore where we belong by Kara Hadge and Stephanie Durand
In a world where we all too often end up focusing on differences, we
can forget that there are many things that can unite us, whether we are
Americans, Brits, Christians, Muslims, Israelis, Palestinians, youth, women or
members of any number of other communities.
The British Council’s Our Shared Future project and the UN Alliance of
Civilizations have just released a new video series, Journeys of Belonging, that brings to light the common threads that
bind people of diverse ages, genders, cultures, religions, ethnicities and
beyond. Produced in partnership with the University of Missouri School of
Journalism, the series features 114 short video clips in which 17 public
figures and young leaders discuss their multifaceted identities, the communities
they belong to and the journeys they have gone on to find that sense of
belonging.
The paths that these individuals have followed were rarely smooth, and
many of the videos reveal the conflicts that now shape who they are. Identities
and backgrounds can be best understood through storytelling and by looking
beneath the surface, which can help us discover shared experiences.
It’s tempting to treat identity as a mere label, or a way to
categorise people – which can lead to painful stereotyping. Some individuals,
however, have transcended obstacles and stereotypes and found strength in doing
so.
Our world is diverse, and everyone in it – ourselves and our
neighbours – have complex identities. The journeys we take to understand these
complexities, within ourselves and others, are experiences that we all share,
even though we may not recognise them as such.
No one can be reduced solely to being a member of a particular
religious or ethnic community. Instead, we belong to multiple communities and
hold various roles in them – often simultaneously.
One goal of the video series is to prompt questions that can help
viewers think through identity and explore questions, like: How can we best
respond to practices and belief systems that are not ours? When do we choose to
insist on a cultural identify? Do we necessarily have to choose, or can various
aspects of our identity coexist?
In an increasingly connected global society, we have more
opportunities than ever to find commonalities with people who are continents away,
but also with our neighbours. Appearances can be misleading. We may think we
understand someone’s identity when it is actually more complex. As members of a
global society, we would do well to develop a more nuanced sense of identity
and in doing so to find our own sense of belonging.
Kara Hadge is the Manager for Digital Media at the British Council USA
and works on the Our Shared Future project (www.oursharedfuture.org). Stephanie
Durand is Strategic Media Partnerships Manager at the United Nations Alliance
of Civilizations (www.unaoc.org).
Happy Christmas and Best wishes for 2013
*********
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