This analysis explores the Equality Act 2010 and its implications for employers in terms of discrimination and reasonable adjustments for disabled employees.
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ANALYSIS OF EQUALITY ACT 20101 ANALYSIS OF EQUALITY ACT 2010 Studentâs Name Course Professorâs Name University Date
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ANALYSIS OF EQUALITY ACT 20102 Introduction Background to the Equality Act 2010 The corporate environment has greatly been affected by occurrences of cancer among employees. Consequently, a lot of financial muscle has to be injected by corporations in order to ensure that medical cover is offered for those who have been diagnosed with the disease. The issue that has been brought about by the condition, and one that continues to hurt most companies the high rate of absenteeism that is caused by cancer. Many organizations have to outsource person who will cover schedules of the sick persons, and this results into redundancy of employees(Murphy, et al., 2013). Most companies that lay off absentee employees who have been diagnosed with cancer, and will mostly try to justify the decision on the basis of professional redundancy. Upon the adoption of the Equality Act 2010, it is now impossible to fire employees without considering the legal implications that may be brought against the company(Amir,et al., 2010). Approximately 90,000 people are diagnosed with the disease annually within the UK. Cancer employees are automatically to be covered by special human rights laws as defined within the 2010 Equality Act. Discrimination in the workplace that results from cancer is approximated to have risen from 23% to 37% in 2010 alone (Macmillan Cancer Support). The Women at the Haven Corporation outlined that ignorance is greatly embraced by cancer patients. This exposes them the possibility of their rights being abused by the employers either intentionally or unintentionally (Bjelland, et al., 2010). Since the employees donât understand their rights, they even end up being discriminated against by other employees. On the other hand, employers donât know the laws that govern employeesâ rights as articulated in the Equality Act 2010. Alex should avoid falling into this trap as there are legal fines that could be too heavy to be paid by his organization if he violates the rights of James. It is understandable for organizations to feel the pinch of having to support absent employees, but it is also necessary for employers such as Alex to consider the legal implication that may result from firing James on the basis the pre-cancerous condition that has affected him (Chan, et al., 2009). Purpose of the Equality Act 2010 The equality principle 2010 was designed to guide public corporations in choosing a suitable approach that can be used handle employee issues. Prior to the enactment of the equality Act 2010, a lot of unfairness used to be extended on employees especially when issues of termination and absence from work arose. The Equality Act dictates that nine specific aspects of employee rights should be respected in the work place, and violation of these by employers should lead to punitive legal measures (Graf, Marini, and Blankenship, 2009). The following employee rights that are protected under the Equality Act 2010; race, religion or belief, sex, gender reassignment, age, pregnancy and maternity, marriage, and civil partnership, disability. The need for having measures that protect the rights of employees was identified in the aftermath of the murder of Lawrence Stephenson. The event that occurred in 1998, and was followed by a sham investigation that was undertaken by police who were highly prejudiced (Cox, 2010). This was contributed to by the fact that Lawrence was a person of color, and therefore, facts of about the murder were largely ignored. This created the idea that the late Lawrence was being discriminated due to his race. Many scholars have reviewed this issue and various recommendations were drawn about 5 years down the line (McKaig, 2013). These
ANALYSIS OF EQUALITY ACT 20103 recommendations formed the basis of enacting measures that dictated how private and public corporations ought to handle employees. It had become evident that the workplace was one area where discrimination was being propagated. Additionally, cases of harassment would largely remain unsolved as there were no guiding principles, and employees who had been harassed were afraid of coming out due to the fear of victimization. In an organization such as that of Alex where people with different interact with other, thereâs need to create room for equality for all employees. The Equality Act 2010 holds various stipulations that should be respected by any employer. Numerous situations of unfair treatment at work have been challenged in court, and in most cases, it is the employees who end up winning (Hassett, O'Malley, and Keating, 2009). However, an important factor that plays out in the corporate environment even today is ignorance. Both the employers and employees have been found guilty of the aspect of ignorance. Most employers donât know the measures that should be taken to avoid falling into the trap of violating stipulations under the Equality Act. Therefore, in certain or most cases, the unfairness that is projected upon the employees results from the absence of adequate knowledge on how employee issues should be handled. Approximately 8% employees in every organization donât understand that there are regulations protecting their interests in the work environment (Krasovitsky, et.al 2016). Alex should review the Equality Act 2010 so as to understand what is required of him as an employer in the instance that his employee who is very productive ends up not being able to attend to his duties as usual. Employers such as Alex are understandably caught up in a dilemma when they have to finance the medical cover of an employee such as James and at the same time pay him the full amount of his salary yet the latter cannot be able to attend to his duties. Therefore, Alex should seek to understand if there are any measures that his organization can undertake to avoid bleeding out financially, while supporting a person who is not able to offer services to the company. Alex should be careful not take measures that will create room for legal proceedings as this will definitely lead to punitive fines a factor that will not work for Alex (Newsom, 2012). Possible Disability Discrimination Instances The Equality ACT outlines several types of discrimination that can be extended on an employee. Direct discrimination involves instances where a person is treated far much worse because of the condition that they are facing in life (Quinlan, et al., 2011). Due to the possibility that James might end up being diagnosed with cancer, Alex may feel that the employee can be facing challenges that may end up limiting his ability to function properly. Hence in the instance that promotion opportunities come up that James is qualified for, Alex may withhold such information. Alex should ensure that all changes to the company are effectively communicated to James (Orozco, 2010). This will eliminate the possibility of James arguing that he was sidelined from opportunities that were available since he was in hospital. Indirect discrimination of the other hand involves an instance where Alexâs organization comes up with policies that may alienate persons with challenges such as James. This would cause a conflict of interest on the part of James since even now that he is sick, the Equality Act 2010 dictates that he should always be considered as an employee of Alex (Paraponaris, Teyssier, and Ventelou, 2010). Therefore, any policies that are drawn in absence of Alex should take into consideration his condition and the possibility that he might end up being fully diagnosed with Cancer. Harassment is also classified by the Equality Act as a form of discrimination. This involves instances where an employee is unfairly treated as a result of being different from the rest. Harassment create an
ANALYSIS OF EQUALITY ACT 20104 environment that is humiliating, offensive, hostile and degrading. This is a critical area since the discrimination may not only be propagated by Alex, but also by other employees. If Alex fails to enact punitive measures for employees who are found to propagate harassment, then James may sue Alexâs organization on the basis of failing to create a safe environment for its employees. Finally, the Equality Act outlines victimization as the last form of discrimination. Unfair treatment may occur on James due to his choice to sue Alexâs organization under the Equality Act. If this happens, he can sue the organization for victimization (Park, et al., 2010). Advisory Conciliation and Arbitration Service (ACAS) These are important factors that Alex should start considering and effectively creates the next important section of this report. Alex should start taking measures as soon as possible to factor in the condition of James. Generally, this involves creating an enabling environment for the employee who has been affected by Cancer. This approach will ensure that measures are taken to protect the integrity of the business early enough. ACAS defines Reasonable Adjustments as the measures that should be taken to ensure that any disadvantages that may affect disabled persons are eliminated (Radespiel-Tröger, et al., 2009). In order to understand the need of this reasonable adjustments being taken at the work place, it is necessary that Alex assumes that James has been declared to be disabled. Section 1 of the Equality Act 2010 outlines that James should automatically be considered as a disabled employee. Hence the employer needs to uphold his/her obligation as outlined in EA 2010. Any employee who cannot attend to his/her duties as normal due to an impairment that affects them mentally or physically should be covered against any form of discrimination within the workplace (s7 EA 2010). A huge number of disabled employees normally sue companies on the basis of disability discrimination (Rothstein, 2014). ACAS, which was 1896, and underwent major reforms in 1975, outlines that the extent and type of modification to businesses depends on the size of the enterprise. The adjustments that Alex needs to undertake are inexpensive. They include altering the company policies that dictate what should be considered as an absence trigger. This includes the number of days that employee can be allowed to be absent before being sent warning letters. Likewise, performance targets for James should be adjusted to favor his inability to cope perfectly in an intense environment. The pattern of work hours should also be altered to favor the situation of James. Alex should appreciate the fact that the need for this adjustment is simply so that James does not feel disadvantaged (Smith, 2009). The Equality Act dictates that the moment an employer understands that James is suffering from a condition that may make him disabled, appropriate work adjustments should be equally undertaken at that point. In order to make this process fruitful, Alex should hold a meeting with James so that they can come to an agreement on what will suit the needs of the business, while at the same time covering the interests and conditions of the employee. If Alex fails to undertake the appropriate measures to ensure that will favor James, the latter can definitely take legal measures on the basis of disability discrimination (Stergiou- Kita, Pritlove, and Kirsh, 2016). Generally, the main purpose of ACAS is to resolve workplace issuesthrough the most suitable means available, while preventing matters from getting to court.
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ANALYSIS OF EQUALITY ACT 20105 Considerations that Alex should make as an Employer It is unarguable that throughout the process, Alex will have to inject more finance into ensuring that James is not discriminated upon. It might be necessary for Alex to seek legal counsel before taking this next step. In this instance, Alex should start considering the measures that his organization can take to ensure that the financial burden associated with paying James the full salary for services that he is unable to deliver to the company is reduced. Additionally, considering the fact that Alex has already hired another person to cover for James is definitely taking a financial toll on the company. Alex should start considering if he can be able to lay off James without violating principles outlined in the Equality Act. In the case of Charlesworth v Dransfields Engineering Services Ltd (2016), the company was able to win the case even after it was appealed since the organization initially intended to restructure its operations prior to the claimant developing cancer. Additionally, the tribunal appreciated the fact that the department that Charlesworth was handling failed to provide the anticipated profits. Therefore, there were plans to scrap it off, and offer the employees other opportunities within the organization. Therefore, the absence of Charlesworth from the organization and the eventual restructuring were not related in any manner (Syse, Tretli, and Kravdal, 2008). In Waddingham v NHS Business Services Authority the business argued that it undertakes employee restructuring on an annual basis. This is done to match employees whose roles have become redundant to new roles that could help the organization achieve its objectives. As much was proved to be true, the tribunal listening to this case argued that Waddingham had been fairly discriminated against due to his disability. This is because the restructuring process involved intense interview processes that Waddingham was forced to undertake irrespective of his new diagnosis. The tribunal argued that the company had failed to create an enabling environment for the claimant. In this case, it was argued that the interview for Mr. Waddingham shouldnât have been as intense as what was undertaken by the other employees. Hence the company ended up paying up huge fines for the trouble that had been caused. Another instance of the organizationâs failure to create a favorable environment is that of London Borough of Southwark v Charles. In this case, the claimant was able to win the case since it was determined that London Borough Southwark failed to take into account that Charles couldnât attend any interview to determine his eligibility for the new positions due to his condition. Therefore, the decision of the company to fire Charles since he couldnât reply to his emails was very discriminatory (Tiwary, 2009). Conclusion Alex should understand that the Equality act only allows employers to fire their disabled employees on very limited instances. This can only happen if or when the organization is restructuring with the intent of achieving an aim that is fairly and truly legitimate. In such a situation, the dismissal from work of the employee cannot be associated with the fact that he/she was disabled. This may be quite difficult to achieve in this case since it has to be considered that James was an over-performer in his duties. Additionally, the company had not taken up any plans to restructure its operations. Due to this complication, Alex may explore if other opportunities exist in the business that can be offered to James.
ANALYSIS OF EQUALITY ACT 20106 When and if James is diagnosed with Cancer, Alex should talk to James when he is in a capacity to make conscious decisions. Alex should offer him a less strenuous position that will not create further health complications on the health of James. If James agrees to this proposal, then he will remain in the company where he will be given a medical cover and continue to receive half of his salary. Optionally, Alex can restructure the company and offer James with a new position in which there a fewer tasks involved. The interview should be conducted with the consideration of the disability that is affecting James. In this case his performance should be analyzed with a lower target set for him.
ANALYSIS OF EQUALITY ACT 20107 Bibliography Amir, Z., Wynn, P., Chan, F., Strauser, D., Whitaker, S. and Luker, K., 2010. Return to work after cancer in the UK: attitudes and experiences of line managers.Journal of occupational rehabilitation,20(4), pp.435-442. Bjelland, M.J., Bruyere, S.M., Von Schrader, S., Houtenville, A.J., Ruiz-Quintanilla, A. and Webber, D.A., 2010. Age and disability employment discrimination: Occupational rehabilitation implications.Journal of occupational rehabilitation,20(4), pp.456-471. Chan, F., da Silva, E., Copeland, J., Jones, R. and Fraser, R.T., 2009. Workplace accommodations. InWork and cancer survivors(pp. 233-254). Springer, New York, NY. Cox, J., 2010. Disability Stigma and Intraclass Discrimination.Fla. L. Rev.,62, p.429. Graf, N.M., Marini, I. and Blankenship, C.J., 2009. One Hundred Words about Disability.Journal of Rehabilitation,75(2). Hassett, M.J., O'Malley, A.J. and Keating, N.L., 2009. Factors influencing changes in employment among women with newly diagnosed breast cancer.Cancer,115(12), pp.2775-2782. Krasovitsky, M., Zaballa, A., Purcell, D., Mitchell, A., Davidson, T., Gebicki, C., Drakopoulos, L., Gunn, L., Wadhera, M., La, W. and Barrett, D., 2016.Willing to work: National inquiry into employment discrimination against older Australians and Australians with disability. Australian Human Rights Commission, Sydney. Available at: http://hdl. voced. edu. au/10707/403097. Murphy, K.M., Markle, M.M., Nguyen, V. and Wilkinson, W., 2013. Addressing the employment-related needs of cancer survivors.Work,46(4), pp.423-432. McKaig, L.B., 2013. The Necessity of the Employment Non-Discrimination Act. Newsom, C., 2012. Free to Discriminate: Coleman v. Court of Appeals of Maryland Leaves States with an Incentive to Hire Men over Women.Loy. LAL Rev.,46, p.755. Orozco, N.K., 2010. Pumping at work: Protection from lactation discrimination in the workplace.Ohio St. LJ,71, p.1281. Paraponaris, A., Teyssier, L.S. and Ventelou, B., 2010. Job tenure and self-reported workplace discrimination for cancer survivors 2 years after diagnosis: Does employment legislation matter?.Health Policy,98(2-3), pp.144-155. Park, J.H., Park, J.H., Kim, S.G., Lee, K.S. and Hahm, M.I., 2010. Changes in employment status and experience of discrimination among cancer patients: findings from a nationwide survey in Korea.Psycho âoncology,19(12), pp.1303-1312.
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ANALYSIS OF EQUALITY ACT 20108 Quinlan, E., Maclean, R., Hack, T., Tatemichi, S., Towers, A., Kwan, W., Miedema, B. and Tilley, A., 2011. Breast cancer survivorship and work disability.Journal of Disability Policy Studies,22(1), pp.18-27. Radespiel-Tröger, M., Meyer, M., Pfahlberg, A., Lausen, B., Uter, W. and Gefeller, O., 2009. Outdoor work and skin cancer incidence: a registry-based study in Bavaria.International archives of occupational and environmental health,82(3), p.357. Rothstein, L., 2014. Disability Discrimination Statutes or Tort Law: Which Provides the Best Means to Ensure an Accessible Environment.Ohio St. LJ,75, p.1263. Smith, O., 2009. A Pandisability Analysis: The Possibilities and Pitfalls of Indirect Disability Discrimination.N. Ir. Legal Q.,60, p.361. Stergiou-Kita, M., Pritlove, C. and Kirsh, B., 2016. The âBig Cââstigma, cancer, and workplace discrimination.Journal of Cancer Survivorship,10(6), pp.1035-1050. Syse, A., Tretli, S. and Kravdal, Ă., 2008. Cancerâs impact on employment and earningsâa population-based study from Norway.Journal of Cancer Survivorship,2(3), pp.149-158. Tiwary, M., 2009.The Sexual Harassment of Women at the Workplace (Prevention and Redressal) Bill, 2007: A Critique(No. id: 2272).