Eren asked:


SEX EQUALITY: *** DISCRIMINATION RELATED VICTIMIZATION IN EMPLOYMENT

(Based on author’s site www.geocities.com/sxvct)

Sex equality victimization in employment need not involve sexual advances, gender prejudice -it is itself unlawful.

Employees who suffer *** equality victimization without *** discrimination or sexual harassment also have rights ~this while mostly female victimization is different than sexual discrimination or illegal sexual advances, but equally unlawful under equal rights and *** equality laws.

Sex equality victimization is the specific kind of unlawful employer retaliation which is specifically to do with but independent of *** discrimination or sexual harassment -it has its own different rules, regulations, legal procedures.

Compensation awardable for *** equality victimization in workplaces relates to equal rights and can be limitless if ‘injury to feelings’ is caused by *** equality victimization in employment -if about sexual prejudice in the workplace.

Sex equality victimization has its own special legal definition and is called so because it is gender victimization based on *** equality laws and often arises in employment when one in good faith enquires about, e.g., maternity or paternity leave entitlement and in sexism is subjected to victimization, or if one, mistaken though one may be, honestly believing oneself subjected to unlawful discrimination or unwelcome sexual advances, complains of sexual harassment and suffers victimization (or, if a man or girl or work woman upon being suspected that would, could, or might, complain of a *** equality matter [e.g. illegal prejudice because of marital status or sexual orientation] is caused a detriment) -not necessarily a sexist detriment unlawful under gender equality laws or in terms of a woman’s rights or of women’s equality but any kind of detriment that is because of a sexual discrimination matter.

Simply put, victimization is this, in employment law (under the *** Discrimination Act 1975 ss. 4(1)&(2))..: If the employer knew, or suspected… that the employee alleged, or intended to allege… that the employer, or another employee, did something wrong under the *** Discrimination or a related Act… and… if the employer can not show the allegation to be, both, untrue and not in good faith… and… if it can be seen that as a result of that… by the standards of reasonable employers… one was treated less favourably than any other employee was, or would be, treated… that is unlawful victimisation.

This unlawful victimization under the *** equality legislation applies, just as in the case of unwanted *** advances to a man or women by opposite or same *** or sexual prejudice or bullying, also in the provision goods or services and *** victimization is actionable then too; but, *** prejudice or sexual abuse based victimization is mostly a feminine issue and mostly *** victimization takes place in employment against girls or women employees -although not only female employees but also male persons may complain of *** equality victimization.

In sexual victimization complaints arising out of workplace harassment or gender prejudice covered by a *** equality law, if victimization is or involves dismissal, the qualifying period (the requirement that one must have been employed for at least a year to be entitled to complain under employment legislation -unless for breach of contract) does not apply -an equal rights demand is a protected act and one may complain of gender victimization regardless of one’s length of employment.

Such victimization is covered also by the Code of Practice of ACAS (Advisory Conciliation and Arbitration Service) who arbitrate also on *** equality and victimization claims.

The EOC (Equal Opportunities Commission) must promote equal rights policies -including sexism toward women workers and working women’s rights and victimization of woman employees ~it requires employers to have a written EOP (Equal Opportunities policy) document on equality principles -including on *** equality and covering unlawful prejudice victimization of work women.

Sex equality legislation requires the EOC also to provide advice to and assistance in respect of complaints to Industrial Tribunals of victimisation (this, unless assistance is applied for legal representation, often is in the form of advice and drawing up of the *** equality Questionnaire ~answers to this can be used in evidence that there had been e.g. an illegal discrimination complaint -it entitles inference about the alleged victimization to be drawn from failure to respond or if answers are vague or ambiguous).

When complaining of *** equality related victimization, it is important to remember the following:-

A. Complaints of equal rights victimization to Employment Tribunals must be made within three months of the date on which the *** equality victimisation took place, or of when the *** equality victimization came to one’s notice -this does not include that day, but does include weekends and most public holidays and day of receipt of the victimization complaint by the Employment Tribunal local to the employer ~the last day ends at midnight.

B. Same applies about the *** victimization Questionnaire -but if served after the victimization claim is lodged it is 21 days ~even if the employer is legally represented, if a limited company, it should be served on it’s Company Secretary at its registered address.

C. If a postal victimization claim is received out of time, one must show that at least 2 days were allowed for postal delivery -or the victimization claim may be rejected.

In complaints of sex-equality victimization it is wise to bear in mind precedent which may affect victimization claims:-

1. Victimization has to be in respect of the employment relationship; a sexual prejudice or sexual abuse based victimization complaint does not qualify if it is by the employer but not in the course of or in respect of the employment itself -i.e. if the employer in an unrelated meeting or dealing e.g. at a wedding reception ridicules the employee that is not covered by employment rights: Walters -v- Metropolitan Police Commissioner, 1997, CA.

2. In *** equality victimization complaints, the onus of proof is on the complainant ~although it may easily move to employer: Humphreys -v- Board of St. Georges 1978, EAT -the employer must justify subjecting to a proven detriment considered victimization: National Vulcan Eng. Ins. -v- Wade, 1977 EAT, and a broad approach is relevant in victimization cases: Copper Pass -v- Lawton 1976, EAT.

3. Employment legislation requires reference at the first instance to ACAS with a view to possible settlement without resort to an Employment Tribunal, and so it is also in gender prejudice or *** harassment based victimization ~also, if victimization was dismissal, the victim must ask the employer to re-consider and respond within 28 days -a general principle in employment right being that additional facts must be considered by the employer: Wells -v- Derwent Plastics Ltd. 1978 EAT, any new facts even after dismissal: Christie -v- Rolls Royce Ltd. 1971 EAT, if the employer erred it must be corrected: Sandhu v Dept Science & Education 1973 EAT, especially if there had been no indication of dismissal: Williamson -v- Alcan (UK) Ltd. 1978 EAT.

4. If *** equality victimization is short of dismissal comparisons with others may be necessary -e.g. if one’s workload has been increased or promotion has been denied by victimization ~comparison is the basis of most equal rights cases, e.g., London Regional Transport 1998 CA -custom & practice can also be considered Wallace -v- E. J. Fry Ltd. 1979 NIRC.

5. In victimization complaints it matters not whether the employer was consciously or unconsciously victimizing nor what was the employer’s motive or intention -if there has been less favourable treatment on grounds of gender that suffices: Reg. -v- Birmingham CC ex-parte EOC 1989, HL, and, James -v- Eastleigh BC 1990, HL.

6. Victimization cases may involve a Pre-Hearing Review to decide whether there is a reasonable prospect of success -this is different than a full merits hearing of the victimization complaint, and the onus here to discharge is not proving the *** equality victimization case, but that the employer’s stated reason is capable of not being the reason, and that the reason is capable of being victimization, qualifying the *** equality victimization complaint for a full merits hearing.

7. If *** equality victimization is dismissal and it proceeds to a full hearing, once the *** equality victimization complainant gives evidence, it is then for the employer to counter that evidence and normally the Employment Tribunals then have regard to the reason stated by the employer in determining if the *** equality victimization was the reason or the main reason for the dismissal.

There is no automatic entitlement to written reasons for the decisions of Employment Tribunals and appeals can not be made without written reasons -one must specifically ask for written reasons within 14 days of the victimization hearing ~appeals in *** equality victimization cases lie to the EAT (Employment Appeal Tribunal).

Laws change -the above are brief guidelines.

The author has a website at: www.geocities.com/eoa_uk

Eren asked:


SEXUAL PREJUDICE AND HARASSMENT, GENDER EQUALITY AND OPPORTUNITIES –AND WORKPLACE *** DISCRIMINATION

(Based on author’s site www.geocities.com/sxdsc)

Legislation which, except in specific exceptional circumstances, prohibit discriminating against one on the ground of one’s *** is not limited to but most often becomes involved in relation to or in the course employment, in, e.g., recruitment, job selection, terms and conditions of employment, training and promotion, and pay -including in the form of fringe benefits and redundancy pay and pensions.

In law, discrimination can be direct or indirect -or as harassment or victimization.

The law expects employers to have specific policies to ensure in all respects non-discriminatory treatment of all their employees of either gender or transgender -whether male or female and regardless of the marital status of men or women in their employ, and neglect or recklessness by the employer may make in law the employers (including vicariously) liable for *** discrimination or sexual harassment.

Sex discrimination is, simply, subjecting to less favourable treatment a person because of that person’s *** -because the person is boy or girl, is a man or a woman (including, in the case of female persons, whether pregnant, expecting, or with a baby or children as covered by the equality and employment legislation, and also male persons in relation to paternity leave), or because of that person’s marital status -because that the person is married or single -mostly applicable to married women.

It is also unlawful *** discrimination if on the ground of one’s *** one is not paid equally for what the law calls ‘equal work’ ~which is not necessarily same work but also is work of equal value -in other words such work that is like work or work which cannot be argued in law reasonably not to be work that is rated as being equivalent work (Hayward -v- Canwell Laird Shipyards 1988).

‘Pay’ in the European Union in Article 119 of the Treaty of Rome is defined this as being the ordinary, basic, or minimum wage or salary or any other consideration, whether in cash or kind, which the worker receives, directly or indirectly, in respect of his [or her] employment from [the] employer -including any benefit involved in relation to after the employment ends ~such as concessions in respect of travel benefits following retirement (Garland -v- British Rail Engineering 1982) and early-retirement pension (Barber -v- Royal Exchange Assurance Groups 1990).

Sex discrimination can be ‘direct’, or ‘indirect’.

Direct *** discrimination would be, for example, if one is refused employment on the ground that the job traditionally is regarded as being ‘a man’s job’ or as being ‘a woman’s job’ (Baksha -v- Say 1977).

Indirect *** discrimination is by way of a requirement which without reasonable justification can not be or can less be met by the other *** ~for example if a job advertisement said that the position advertised persons of either *** could apply but unjustifiably stated that hand-bags or purses were not allowed to work or must wear perfume -in England under European Union Law’s definitions it was held that it was unlawful discrimination that in government employment the age limit for appointment to executive officer grade was 28 since many women in their 20s planned or had babies to look after (Price -v- Civil Service Commission 1978).

It is equally unlawful *** discrimination to segregate male and female sexes without reasonable justification in places of work, as it is also to victimize one because of applicable e.g. feminism or feminist activity or if is known or suspected to have made or be intending to make an allegation of having been subjected to *** discrimination or sexual harassment.

Sexual harassment at work sometimes may also be a criminal offence ~in Europe the EU Code of Practice defined it as being unwanted conduct of a sexual nature or other conduct based on *** affecting the dignity of a woman [or a man] at work -it is a detriment on the ground of one’s gender (it was unlawful for example for two male employees to have made frequently remarks which were suggestive to one of their female colleagues and to have brushed against her deliberately causing such unpleasantness as to have necessitated her requesting to be transferred to another post -Porcelli -v- Strathclyde Regional District Council 1980).

In Europe the member states of the European Union must have an Equal Opportunities Commission or its equivalent to regulate these under e.g. the *** Discrimination Act 1975 (supplemented by the Equal Pay Act, Maternity and Parental Leave Regulations, Maternity and Paternity (Amendment) Regulations, EE (Sexual Orientation) Regulations -and in the Employment Rights Act and the Employment Relations Act).

The Equal Opportunities Commission must also to provide information and assistance -including legal representation subject to meeting specified criteria, to persons who wish to complain to a county court, or in the case of trainees or employees to an employment tribunal.

The complaints process includes, if the person alleging discrimination so chooses, serving a questionnaire on the alleged discriminator -requiring to related questions written answers ~it may be used in evidence and inference be drawn from failure to respond or vague or ambiguous answers.

The person alleging discrimination may be, up to limits specified by law, in the case of the industrial / employment tribunals, ordered to pay costs, if the allegation proves to be unreasonably groundless, frivolous, or vexatious, and whereas financial remedy in respect of other matters is limited to a maximum, following a European Court of Justice confirmation there is, at the discretion of the tribunal, no limit on the amount of compensation which may be awarded for injury to feelings arising from *** discrimination in the workplace.

It is not unlawful *** discrimination, though, to discriminate in life or accident insurance risk assessment for employees fringe benefits justifiable by statistics, or in competitive sport if strength or stamina or physique matters -nor is it *** discrimination in employment if discrimination relates to, e.g., unadvertised managing of premises partly in one’s or relatives’ occupation, voluntary non-profit bodies or charities insignificant to other *** or statutory single *** colleges, or facilities which may embarrass men or women or would offend significantly a religion on grounds or privacy and decency.

Sex discrimination may be perfectly lawfully practised by employers, if there is an imbalance of male and female employees, without the dismissal of any by recruiting specifically from one *** alone, and in such cases as of necessity only from one particular *** must be recruited ~for example as in the case of a movie company’s advertising Edgar Rice Borough’s ‘Tarzan’ specifically for a male person or for his ‘Jane’ auditioning only female persons -or, e.g., in the case of a modelling agency employing as a fashion model only persons of one *** for modelling wear for that *** only.

Sex discrimination laws may vary in detail among countries that have such legislation, and in the European Union they are more or less uniform -in the case of allegations of discrimination in education in England (whether one does or not settle through the Advisory Conciliation and Arbitration Service -ACAS) with a requirement within a specified time before taking legal action to inform the secretary of state for education.

(Laws change –always ascertain current law)

The author has a website at: http://www.geocities.com/eoa_uk