Discrimination in employment - HR Management

As the second part of this chapter establishes, employees have statutory protection against discrimination on grounds of sex, race, disability and unequal treatment in terms of pay. However, the presence of discrimination in employment is still evident (see Dickens, 2000 for general discussion of the problem); for example, the Equal Opportunities Commission (2001) reported that women in full-time employment earn 82 per cent of male full-time hourly earnings, a figure that stood at 69 per cent in 1971.

Equally, part-time women employees receive only 61 per cent of male full-time hourly earnings against a European Union average of 73 per cent. Further, in some female-dominated occupations, for example nursing, women earn 6 per cent less than average male hourly earnings and survey material continues to demonstrate that female employees argue that pay discrimination remains a persistent problem. For example, a survey of 1500 women managers found that a third of the sample claimed that pay discrimination persists in their organisation (Public Affairs, 2001).

More dramatically than this, a recent report by the National Association of Citizens Advice Bureau found that many women are still sacked or threatened with the sack when they become pregnant. In 2002, in its submission to the Hicks review of non-executive directors, the Equal Opportunities Commission provided evidence that of over 600 senior executive positions of the top 100 firms in the FTSE only 10, or 2 per cent, are filled by women, a proportion that has remained unchanged for the past ten years (EOC, 2002). Only one FTSE 100 company has a woman chief executive – Marjorie Scardino – chief executive of the Pearson Group.

Women now account for 30 per cent of managers but earn 24 per cent less than male managers.

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The categories of sex and race discrimination – direct discrimination, indirect discrimination and victimisation – are relatively easy to define, and many organisations have taken procedural steps in terms of pay audits, greater transparency over pay, analytical job evaluation schemes and equal opportunities policies to combat such discrimination, yet discriminatory practices remain in evidence. There are four reasons that help to explain the continued presence of discrimination in employment.

Firstly, much discrimination goes unreported and is tolerated by employees, who feel that they have no voice mechanism to complain about such treatment; this is particularly the case in small firms and some non-union employers. However, it is necessary to point out that within workplaces that have collective bargaining and otherwise wellordered personnel policies, discrimination may occur; for example, recently there was a well-publicised case of racial discrimination at the Ford Dagenham plant.

This case was settled by an employment tribunal in 2002 when two former employees were awarded a total of £500 000 in damages for racial discrimination and medical disability. The Ford motor company accepted the decision of the tribunal but added that a policy of zero tolerance of racial abuse had been introduced at the Dagenham plant and further noted that the complaints of both employees had been thoroughly investigated. A second explanation for the continued presence of discrimination relates to the rather limited nature of employment protection legislation during the 1980s.

For much of its period of office the last Conservative government operated differential employment protection legislation for full-time and part-time workers. The results of much of this legislation, for example the lawful exclusion of part-time workers from occupational pension schemes, are now unlawful. However, many claims against this type of discrimination, unequal pay and indirect sex discrimination, lodged on the basis that more part-time workers were women than men, remain in the process of redress and resolution.

In an effort to reduce discrimination between full-time and part-time employees the Part-time Workers’ Regulations came into force in July 2000. These regulations state that part-time workers should receive the same pay rates as full-time colleagues and receive the same hourly overtime rate once they exceed normal working hours. In addition to these equal rights, part-time workers must receive the same holiday, maternity and paternity leave entitlements as full-time colleagues on a pro-rata basis.

Finally, parttime workers must be included in the provision of workplace training, that is, there must be a single framework for training in the workplace and not separate sets of arrangements for full-time and part-time workers. The part-time regulations cover 7 million workers working fewer than 30 hours per week, including home workers and those employed on temporary, casual or short-term contracts or by an employment agency.

The regulations, although a marked improvement on the previous situation – which forced female part-timers who alleged discrimination to seek redress through the indirect route of the Sex Discrimination Act – are limited. For example, while the regulations call for comparability of pay between full-time and part-time workers, they contain no mechanism to measure or quantify such comparison. Currently a ‘comparable worker’ – a comparator that a part-time employee uses for comparison – is defined as ‘a full-time worker with the same type of employment contract doing the same or similar work’.

A third explanation of the emergence of newly defined forms of discrimination in employment is the UK’s further integration within the EU and the adoption by the incoming Labour government of the EU’s Social Charter of employment and social rights in 1997. This accession further exposed the limited protection provided for many British employees; for example, prior to November 2001 individuals employed on fixedterm contracts did not have the same rights as full-and part-time employees in terms of pay, pension entitlement and paid holidays. Further, at the time of writing, agency workers or ‘temps’ employed directly by employment agencies can be lawfully discriminated against in terms of pay, holiday pay and dismissal.

A recently announced EU directive – once approved at EU level – may eventually remedy this source of currently lawful discrimination in the workplace . Lastly, in the UK some areas of discriminatory practice, for example discrimination on the grounds of age, sexual orientation, sexual and racial harassment, remain ‘lawful’ as they are omitted from specific mention in relevant statutes – racial and sexual harassment are not categorised by Race Relations legislation or Sex Discrimination legislation.

Age discrimination is regulated by a voluntary code of practice and is likely to remain so until around 2006 when an EU directive on Equal Rights must be implemented in member states. On a related matter, employees beyond the statutory retirement age have traditionally found themselves beyond employment protection, yet a recent employment tribunal decision that two men over 65 were entitled to claim for redundancy and unfair dismissal may give those who work beyond the statutory retirement age employment rights.

However, the situation remains in doubt for two reasons. First, the decision in this particular case is likely to be appealed. Second, the decision in this case turned on the presence of ‘disproportionate effects’ whereby more men than women remain in employment beyond the normal retirement age. Hence, the ‘protection’ acquired is indirect in this case as it relates to indirect sex discrimination.

The situation for those who work beyond the statutory retirement age may finally be resolved by the EU directive on discrimination that comes into force in 2006.Protection against discrimination on grounds of sexual orientation and religious belief is beyond specific regulation in the UK and is likely to remain so until the incorporation of an EU directive into English law, banning discrimination on both counts from December 2003.

The present government published a discussion document on both issues in October 2002 and in the absence of statutory protection in these areas the Human Rights Act may provide some protection if discrimination in employment contravenes employee rights to the protection of private and family life. The emergent issue of workplace bullying further demonstrates the limited nature of the UK’s discrimination and employment protection laws. A recent survey of 3500 employees found that 20 per cent of the sample had experienced workplace bullying in the past year, with 8 per cent of the sample claiming to have experienced bullying on a regular basis.

Bullying is not confined to employees further down the organizational hierarchy; 24 per cent of middle managers and 17 per cent of senior managers reported that they had been bullied at least once over the past year (Mercer Human Resource Consulting, 2002). Currently, workplace bullying is not specifically categorised in employment legislation, and while the practice may constitute disability discrimination or indirect racial or sexual discrimination, in other cases employees may have to resign and claim constructive dismissal, It is important for the personnel practitioner to note that an employer is liable to defend an allegation of discrimination in the workplace and act upon it even if the employer is not directly responsible for it; that is, where another employee is responsible for the discriminatory behaviour.

As some recent cases in City of London financial institutions demonstrate, it is not sufficient for an employer to argue that racist and sexist behaviour constitutes workplace ‘banter’ or that they were unaware that such behavior occurred or that such behaviour is not discriminatory because all employees are subject to it. Further, other recent cases in financial institutions demonstrate the continued presence of indirect sex discrimination due to unequal pay, such as in the calculation of bonus payments.

For example, a female analyst employed by Schroder Securities recently won £1.4 million damages in a sex discrimination case where the applicant to the employment tribunal successfully argued that her results were similar to those of male colleagues but that her bonus payments (£25 000) were significantly lower than those of her colleagues who received ‘six-figure’ bonuses. The employer, while denying the claim, accepted the tribunal decision and withdrew its application to the Employment Appeal Tribunal.

Since April 2003 employees have had the right to require employers to complete equal pay questionnaires on co-workers. The evidence suggests that employers who conduct regular pay reviews and those who are committed to pay transparency are far less likely to have pay systems that discriminate against women workers. The main themes that emerge from this part of the chapter centre around three issues, each of which is pertinent to the personnel practitioner. First, statutory protection is updated at Parliamentary or EU level and it is essential for personnel practitioners to audit and monitor workplace practices and procedures that are likely to be affected by new legislation.

Second, workplaces that have proceduralised systems for personnel management must be vigilant and act quickly to prevent apparently one-off incidents developing into persistent behaviour consistent with emergent bullying or victimisation. Last, much remains to be done in order to remove discriminatory practices in the workplace and it is clear that the discrimination agenda gets not only longer but wider as new areas of activity are drawn into the scope of existing measures; for example, the extension of equal pay legislation to cover pension entitlements and before that, in the 1980s, the introduction of the equal value amendments for different work of equal value to an employer in terms of skill, effort and decision-making.

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