EU Law Assignment (LL5002/LL6002): Employee Rights and Discrimination

This report analyzes a scenario involving an imaginary EU directive prohibiting workplace discrimination against women, which the UK has not implemented. The assignment assesses the rights of Anita, Basanti, Carmen, Darcy, and Emilia, who were fired from their jobs due to their sex. It examines relevant UK legislation, including the Equality Act 2010, the Employment Rights Act 1996, and other acts prohibiting discrimination. The analysis considers direct and indirect discrimination, harassment, and victimisation, as well as legal exceptions. The report concludes by determining whether the individuals have grounds to claim compensation based on their employment status and the applicability of UK law. The report also considers the implications of the UK's non-compliance with the EU directive, emphasizing that UK domestic laws are sufficient to cover discrimination. The report uses cases and legislations to support the arguments.

Running head: EU LAW
EU Law
Name of the Student
Name of the University
Authors Note

1EU LAW
Answer- 1
Issue
In this paper, the issue to be discussed is whether Anita, Basanti, Carmen, Darcy and
Emilia have any rights under the Employment equality law of the UK or not.
Rule
The employment equality law of the UK is considered to be a body of law that establishes
against damage-based actions in the place of work. As per the provisions of the UK Labour Law
it has been observed that it is illegal to discriminate an individual or group of individual within
the workplace, school, colleges and other places only because of their ‘protected characteristics’
which includes sex, race, caste, creed, religion, age, disability both mental and physical, colour
and sexual orientation. In UK, the key regulation which prohibits discrimination in right to use
education, private goods, premises or services and public services in relation to employment is
the Equality Act, 2010. Three vital European Union Directives are also followed by this Act.
Apart from that there are also some other Acts which play an active role in prohibiting
discrimination from various parts of the society, such as the Equal Pay Act, 1970, the Sex
Discrimination Act, 1975, the Protection from Harassment Act, 1997, the Trade Union and
Labour Relations (Consolidation) Act, 1992. The Equality and Human Rights Commission is
established by the Equality Act, 2006 and this commission helps to strengthen implementation of
equality laws. Apart from that UK complied with several treaties and EU Directives in order to
control sexual discrimination at workplace1.
1 Bernaz, Nadia. "Enhancing corporate accountability for human rights violations: is extraterritoriality the magic
potion?." (2013) Journal of Business Ethics 117.3: 493-511.

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Many authors are of the view that discrimination is illegal when an individual is hired by
an employer, in the terms and conditions of agreement which are usually presented, in making
pronouncement in order to fire an employee or any other type of damage. There are certain
circumstances which are protected by the Equality Act, 2010 when an individual treated by
another person whether employer or others differently due to his/her sex. It includes some
conditions such as:
 The behaviour may be one of the actions or might be due to a rule or policy;
 It does not need any intention to be illegal as it is itself illegal;
However, there are certain circumstances in which different treatment because of sex is not
illegal2. According to the provisions of the Equality Act, 2010, an individual must not be
discriminated on the following grounds, such as:
 That individual is or is not a specific sex;
 Someone is of the view that such person is the opposite sex (it is acknowledged as
discrimination by perception);
 Such person is related to someone of a specific sex (it is acknowledged as discrimination
by association).
Under the above-mentioned Act3, sex means a male or a female, or a group of individuals
like boys or men, or girls and women. The act of discrimination can be divided into four
categories, such as:
2 Papadima, Raluca. "Recent Developments regarding Gender Balance on EU Corporate Boards." (2015) European
Company Law 12.5: 245-252.
3 The Equality Act, 2010

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 Direct discrimination, which happens due to the sex of an individual, when someone
treats an individual not as good as someone of the opposite gender who is in the same
situation. It is illegal within the meaning of section 13 of the Equality Act, 2010. For
instance, an offer has been given by a nightclub regarding free entry of women but men
need to pay for getting in. In Coleman vs. Attridge4 the European Court of Justice held
that damages may be claimed by a person who suffers adverse treatment for supporting
someone he/she related with.
 Indirect discrimination, which takes place when a specific policy or working pattern of
an organization applies in the similar way to both males and females but puts an
individual at a disadvantageous position due to his/her sex. It is illegal within the
meaning of section 19 of the aforesaid Act5. For instance, an employer wants to change
the shift hours for workers so that they complete at 5pm in its place of 3pm. Due to have
some caring obligation, female workers might face a difficulty in collecting their
children from childcare because of the changing shift hours6. The provisions of the
aforesaid Act7 states that indirect discrimination under the head of sex is permitted if the
employer or company efficiently provides an evidence regarding the good things about
the policy which is recognized as objective justification. In Enderby vs. Frenchay Health
Authority8 it was stated by the court that though the burden of proof lies upon the
employee, but this cannot weaken implementation of equal pay.
4 Coleman vs. Attridge [2008] IRLR 722
5 The Equality Act, 2010
6 Duina, Francesco G. The social construction of free trade: The European Union, NAFTA, and Mercosur.
(Princeton University Press, 2006).
7 The Equality Act, 2010
8 Enderby vs. Frenchay [1994] ICR 112

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 Harassment is considered to be illegal within the meaning of section 26 of the aforesaid
Act9. It can be divided into three categories relating to sex. The first form of harassment
takes place when an employer or organization or any person makes such a comment
which becomes the reason of feeling humiliated, ruined or offended. For instance,
comment of a director regarding the promotion of a woman, which is meaningless
because they go off to have kids is considered to be harassment. The second form of
harassment is recognized as sexual harassment in which a person treats another person
sexually, such as by making sexual comments or cracking jokes, assault, sending
messages of a sexual nature or pornographies or touching. For instance, a lecturer of a
university cracks jokes of sexual nature to his female student by implying that she will
qualify in her exams if she agrees to stay one night with him. The third form of
harassment takes place when a person treats another person unethically as that person
refused to put up with sexual harassment. For instance, a female employee got demoted
as she refused the proposal of his employer regarding sexual conduct. Many authors are
of the view that nobody can give proper justification for harassment. Therefore, if an
employer or organization shows evidence on the fact that it took all necessary steps in
order to prevent harassment, then the person who suffered could not claim damages for
harassment from the organization or employer10. In Majrowski vs. Guy’s St Thomas’
NHS11 case is a landmark case under the UK labour law which stated that if an employee
or group of employees harassed another employee of the same organization, then the
employer will be held vicariously responsible for that harassment.
9 The Equality Act, 2010
10 Wachter, Sandra. "Affinity profiling and discrimination by association in online behavioural advertising." (2019)
Available at SSRN .
11 Majrowski vs. Guy’s St Thomas’ NHS [2006] UKHL 34

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 Victimisation is considered to be illegal within the meaning of section 26 of the above-
mentioned Act12. is something for which a person is treated badly for making a
complaint related to sexual discrimination under the provisions of the Equality Act. If a
person supports someone for making a complaint in this regard can also suffer from its
consequences. For instance, if a male employee for helping his female colleague
regarding sexual discrimination claim is treated badly by the employer or organization
that may be considered as victimisation. In West Yorkshire Police vs. Khan13 case the
court was of the view that an employer is authorised to take lawful steps after dismissing
an employee by whom a discrimination claim has been made against that employer.
However, there are some situations under which sexual discrimination is legal and
nobody can claim damages for the same, such as:
 Occupational requirement under Schedule 9 of the Equality Act, 2010;
 Material difference u/s 23 of the said Act14; and
 Justification u/s 13 (2) and 19 of the above stated Act15.
It has been also stated by several authors that any, kind of dismissal due to discrimination
is generally treated as unethical conduct and an individual can claim compensation under the
provision of section 94 of the Employment Rights Act, 1996 for discrimination within
workplace16. The working period or engagement of a person as an employee is irrelevant in this
regard.
12 The Equality Act, 2010
13 West Yorkshire Police vs. Khan [2001] UKHL 48
14 The Equality Act, 2010
15 The Equality Act, 2010
16 Human Rights Watch. World Report 2016: Events of 2015. (Policy Press, 2016)

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Analysis
In this given scenario, all Member States of the European Union adopted an imaginary
directive in order to forbid discrimination from workplace against the women. This directive is
not adopted by UK as it is of the view that prevailing domestic laws are sufficient in prohibiting
sexual discrimination from workplace. In this scenario, Anita is a lawyer of UK Home Office in
Croydon, UK. Basanti is a Bulgarian Charity worker of UK State Aid. Carmen is a Spanish
sweeper at McDonald’s restaurant. Instead of Darcy, Marks and Sparks join receivership. Emilia,
a French chef works at French Bistro in France. All of them have been fired from their job. Not
only that, it can also be presumed that all of them have been discriminated under the provisions
of the Equality Act, 2010. As any type of discrimination is unethical and illegal under the
provisions of section 94 of the Employment Rights Act, 1996, therefore all of them have a right
to get compensation. The reason of firing the employees is sexual discrimination but which types
of discrimination they face is not mentioned. The domestic and prevailing laws of UK in order to
prohibit discrimination is applicable only to the employees of the UK.
Conclusion
Hence it can be concluded that, as the new directive is not adopted by the UK, so Anita,
Basanti, Carmen, and Darcy has a right to claim compensation under the provisions of section 94
of the Employment Rights Act, 1996 for unlawfully firing them. Emilia cannot claim
compensation by making a complaint in this regard as she is not an employee of UK and the
domestic laws of UK is applicable only to the employees of UK and not France.

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BIBLIOGRAPHY
Books & Journal
Bernaz, Nadia. "Enhancing corporate accountability for human rights violations: is
extraterritoriality the magic potion?." (2013) Journal of Business Ethics 117.3: 493-511.
Duina, Francesco G. The social construction of free trade: The European Union, NAFTA, and
Mercosur. (Princeton University Press, 2006).
Human Rights Watch. World Report 2016: Events of 2015. (Policy Press, 2016).
Papadima, Raluca. "Recent Developments regarding Gender Balance on EU Corporate
Boards." (2015) European Company Law 12.5: 245-252.
Wachter, Sandra. "Affinity profiling and discrimination by association in online behavioural
advertising." (2019) Available at SSRN .
Cases
Coleman vs. Attridge [2008] IRLR 722
Enderby vs. Frenchay [1994] ICR 112
Majrowski vs. Guy’s St Thomas’ NHS [2006] UKHL 34
West Yorkshire Police vs. Khan [2001] UKHL 48

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Legislation
The Employment Rights Act, 1996
The Equal Pay Act, 1970
The Equality Act, 2010
The Protection from Harassment Act, 1997
The Sex Discrimination Act, 1975,
The Trade Union and Labour Relations (Consolidation) Act, 1992