FAW Week 8 Lecture Notes: Legislating for FAW

Legislating for Fairness at Work (FAW)

Agenda

• Background to UK equality and anti-discrimination legislation.
• Evolution of UK legislation.
• 2010 Equality Act and Protected Characteristics.
• Positive action.
• UK approach to equality in the sphere of employment.
• Other legislation relevant to fairness at work.

Learning Outcomes

• Explain the background and evolution of UK equality and anti-discrimination legislation.
• Identify the key features of the 2010 Equality Act, including the concept of protected characteristics and types of discrimination.
• Recognize additional legal frameworks related to fairness at work, such as gender pay gap reporting, AI in recruitment, worker surveillance, and zero-hour contracts.

The UK Approach to Equality Legislation

• Moral response to historic patterns of vertical and horizontal segregation in the labor market designed to produce a “level playing field”. (Lupton and Woodhams, 2006: 339).
• Minimalist/liberal legislative approach.
• Individual rights aimed at promoting equal treatment in obtaining and retaining employment.
• Enshrines concepts of fairness of treatment, consistency, and neutrality.
• Allows for voluntary positive action by employers to remove inequality, not positive discrimination.

Prejudice, Stereotypes, and Discrimination

• Stereotype: A belief about a group or its members resulting from inaccurate information or an overgeneralization.
• Discrimination: Treating a person unfairly because of who they are, or certain characteristics they possess. Discrimination is often based on prejudices and stereotypes.
• Prejudice: An unfavorable attitude towards a social group and individual members of that social group.

Discrimination and Employment

• Discrimination in recruitment: applicants are not judged according to their individual qualities and capabilities but according to some perceived qualities of a social group/category.
• Discrimination can be explicit/direct (prejudice) or can be the result of stereotyping (though prejudice and stereotyping can operate together).
• Discrimination has important consequences for experiences of work since the realities of work (and access to work) differs for different social groups.

History of Anti-Discrimination Legislation

• Equal Pay Act 1970: Equal pay between men and women in ‘like work’.
• Sex Discrimination Act 1975: Prohibited direct and indirect discrimination in relation to sex.
• Race Relations Act 1976: Prohibited direct and indirect discrimination in relation to race and ethnicity.
• Disability Discrimination Act 1995: Employers to make ‘reasonable’ adjustments’ to ensure that a disabled employee is not substantially disadvantaged.
• Equality Act 2010: The latest act.

Equality Act 2010

• Single largest anti-discrimination legislation in the UK.
• Harmonized and consolidated multiple pieces of legislation related to equality and discrimination.
• Offers protection from discrimination on the basis of specific ‘protected characteristics’.
• Introduced some scope for ‘positive action’.
• New Equality Duty for the public sector.

Protected Characteristics

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Equality Act 2010: Discrimination

• Unlawful discrimination occurs when someone is treated ‘less favourably’ than another person due to a ‘protected characteristic’ that they have or are thought to have.

What the 2010 Equality Act Covers

• Direct discrimination
• Indirect discrimination
• Associative discrimination
• Perceptive discrimination
• Victimization
• Harassment
• Occupational requirement
• Positive action (Marchington et al., 2021)

Types of Discrimination in the 2010 Equality Act

Direct discrimination

• Discrimination that arises where someone is treated less favourably in employment on account of their sex, race, age etc. (protected characteristic).
• E.g. Transgender employee being moved away from client-facing sales role after transitioning.

Indirect discrimination

• Discrimination that arises where a condition of employment is applied which results in a worker being treated less favourably on account of their sex, race, age etc. (protected characteristic).
• E.g. Working on Saturdays and people of Jewish faith.

Types of Discrimination in the 2010 Equality Act

Associative discrimination

• Discrimination due to an individual’s association/relationship to someone with a protected characteristic.
• E.g. Being overlooked for promotion due to having a disabled child.

Perceptive discrimination

• Discrimination that arises because others think an individual possesses a protected characteristic.
• E.g. An employer rejects an employee after a probation period because they believe she is pregnant.

Harassment

• Unwanted conduct related to a relevant protected characteristic, e.g. colleagues making rude comments about co-workers’ disability.

Victimisation

• Being treated less favourably due to have making or supporting a complaint under the EA, or are suspected of doing so, e.g. your colleague makes a sexual harassment claim against your boss. After you give evidence as a witness to support their claim, your boss starts treating you unfairly. (Marchington et al., 2021)

Implications of the Legislation

• Recruitment
• Working hours, flexible working and time off
• Pay and benefits
• Career development - training, promotion and transfer
• Managing workers
• Dismissal, redundancy, retirement.
• Training, development and monitoring
• Make reasonable adjustments for disabled people
• Every organization has to comply by the law in relation to:

Can Discrimination Ever Be Lawful?

• Yes, when it is an occupational requirement (Jenkins and Hook, 2019).
• If an employer can show that it is necessary to have a particular characteristic to do a job:
  • Must be an occupational requirement
  • Demonstrate legitimate business reason or aim
  • Show occupational requirement is the best way to achieve this aim
• Applied in relation to:
  • Recruitment
  • Promotion or transfer to another job
  • Access to training
  • Dismissal
• Examples:
  • Religion: A Christian church seeking a minister can specify that applicants must be practicing Christians because the minister's role includes conducting religious ceremonies, leading prayers, and providing spiritual guidance in line with the Christian faith, making it essential for the post-holder to share the same faith.
  • Sex: A women’s shelter advertises a role for a female support worker because the role involves providing sensitive support to women who have experienced domestic violence, some of whom may feel unsafe around men.
  • Ethnicity: A theatre production casting for a character of African heritage specifies this requirement for the role because authenticity in representation is necessary for the story’s integrity and audience engagement.

Positive Action

• Measures designed to overcome the under-representation of certain groups are permissible within the EA 2010 (Jenkins and Hook, 2019).
• It is lawful to take a protected characteristic into account when recruiting or promoting.
• Employers are required to show that positive action is an appropriate way to achieve increased representation.
• Not to be confused with positive discrimination:
  • Giving preferential treatment to certain groups (e.g. quotas) in order to combat under-representation.
  • Unlawful in the UK.

Comparing Approaches to Positive Action in Different Countries

Reasons Why Policy Makers Reject Positive Discrimination

• General consensus is that employers should select the ‘best’ candidate.
• Positive discrimination:
  • Undermines principle of meritocracy.
  • Undermines principle of non-discrimination.
  • Can undermine relations in the workplace with ‘reverse discrimination’ fueling perceptions of unfairness.

Examples of Positive Action

• Targeting job adverts to particular groups to increase the number of applicants from that group.
• Including statements in job adverts to encourage applications from under-represented groups, such as ‘we welcome female applicants’.
• Schemes such as training or internships to help certain groups get opportunities or progress at work.
• Favoring the job candidate from an under-represented group, where two candidates are as qualified as each other.
• Example: An employer has very few women in its senior management team. Under the general positive action provisions, it offers a development program which is only open to women to help female staff compete for management positions. This is not unlawful discrimination against male staff, because it is allowed by the positive action provisions.

Tata Affirmative Action Programme

• The Tata Affirmative Action Programme commits Tata companies to positive discrimination in employing people from historically disadvantaged communities.
• The Tata group has a legacy of engagement with the disadvantaged sections of society dating back to its founding fathers.
• The Tata Affirmative Action Programme (TAAP), adopted in April 2007, attempts to address the prevailing social inequities in India by encouraging positive discrimination for the Scheduled Castes and Scheduled Tribes (SC/ST) communities.

Same or Different? Equality or Equity?

• Discussions around equality and equal opportunities have centered around a key dilemma - does the structural disadvantage suffered by some groups need to be compensated for or does equality mean treating people the same?
• Approach in Europe has predominantly been to reject the need for strong intervention to compensate for disadvantage (liberal ‘light touch’ approach):
  • Regulation to control explicit discrimination
  • Legal avenues to redress unfairness arising from indirect routes to discrimination
• A more radical approach would be positive discrimination (e.g. quotas) (See Noon, 2010)
• Equality: State of being equal, especially in status, rights, or opportunities

Equal Opportunities Summed Up

• Liberal approach
• Emphasis on creating a level playing field by emphasizing ‘sameness’ between diverse social groups
• Avoiding discrimination primarily a ‘social duty of an employer’ (Goss, 1994)
• Focus on ensuring formal, fair, and meritocratic procedures
• Involves the minimization of subjectivity and the standardization of decision-making processes
• ‘Mainstreaming’ equality
• Allows for positive action to redress the effects of previous unequal treatment

Other Relevant Employment Legislation

• Employment Rights Act 1996
• National Minimum Wage Act 1998
• Employment Relations Act 1999
• Work and Families Act 2006
• Legislation covers includes:
  • Rights to belong to a trade union
  • Rights to flexible working
  • Maternity and paternity leave
  • Requirements to report on Gender Pay Gap

Zero-Hour Contracts

• Zero-hour contracts allow employers to offer work with no guaranteed hours, and workers can choose whether to accept shifts. While this provides flexibility, it often leads to financial and job insecurity for workers​.
• Employers need to be aware of a range of laws, in relation to FAW most importantly:
  • Employment Rights Act 1996: This act provides the foundation for employment rights in the UK, including the rights of workers on zero-hour contracts to receive the National Minimum Wage and protection from discrimination.
  • Other benefits depend on whether the person on the ZHC is considered a worker or employee.
  • Employment Rights Bill 2024:
    • Ban of exploitative zero-hour contracts
    • Workers can stay on zero hours contracts if they’d prefer to, the new Bill means they’ll have the right to a guaranteed hours contract if they work regular hours over a defined period.

Pay Gap Reporting

• Legal Requirements: Companies with 250 or more employees must calculate and report their gender pay gap annually. This includes:
  • The mean and median pay gap between male and female employees.
  • The proportion of men and women in each pay quartile.
  • The differences in bonus pay
• Action Plans: While not mandatory, many organisations include action plans to address identified pay gaps, detailing specific measures and timelines to reduce disparities​.
• Upcoming Changes:
  • Recent announcements suggest the UK government may expand mandatory pay gap reporting to include ethnicity and disability pay gaps in future legislation. Organisations are encouraged to proactively prepare for these changes​.

Technology- Using AI for Recruitment

• There are currently no explicit UK laws governing the use of AI and other algorithmic management tools at work. However, several current areas of law potentially restrict the use of these tools in practice.
• Discrimination and the Equality Act (2010): AI systems used in recruitment must comply with the Equality Act, which prohibits direct and indirect discrimination based on protected characteristics (e.g., gender, race, age). Indirect discrimination may be lawful only if it can be justified as a proportionate means of achieving a legitimate aim​.
• Transparency and Fairness: The UK GDPR requires that AI recruitment systems operate lawfully, fairly, and transparently. Employers must inform candidates about how AI systems process their data and ensure these systems do not produce discriminatory outcomes​.
• Automated Decision-Making: Article 22 of UK GDPR provides data subjects with the right: not to be subject to a decision based solely on automated processing, including profiling, which produces legal [or similarly significant] effects concerning him or her.

Worker Surveillance Using Technology

• Data Protection Laws: Employers must comply with the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 when monitoring employees. Surveillance must be lawful, fair, and transparent. Employers are required to provide employees with clear information about what is being monitored, how it will be done, and why (the legal basis).
• Human Rights and Privacy: Employers must consider the Human Rights Act 1998, which includes the right to respect for private and family life. Any surveillance must be proportional to its purpose, ensuring a balance between business needs and individual privacy.
• Monitoring Policies: Employers should implement clear workplace policies regarding monitoring practices and ensure employees are informed about the scope and reasons for surveillance. This might include video recording, keylogging, or tracking productivity through software.
• Impact Assessments: Before implementing any surveillance systems, employers should conduct a Data Protection Impact Assessment (DPIA) to identify and mitigate risks to employee privacy, particularly when using invasive monitoring tools (e.g. keystroke monitoring).

Summing Up

• Equality and anti-discrimination legislation emerged in the 1970s in order to address widespread discrimination in employment.
• Today’s legal landscape is dominated by the Equality Act and the concept of ‘protected characteristics’.
• The UK’s approach is a liberal approach underpinned by the concept of equality of opportunity.