Employment Law Discrimination Against Females UK Experience, can it be followed in India

lawzmag.comAn employer may employ or may not employ anyone for whatever reason he wishes including on the reason based on sex or race of that person as the old common law principle of ‘freedom of contract’ applies equally to ‘contracts of employment.’

An equally important principle of Employment Law is that ‘jobs must be available to both males and females without any discrimination on the basis of sex alone’ but in exceptional cases some jobs may be given only to males or females exclusively on a ‘genuine occupational qualifications’ for the job.

The above principle of ‘no discrimination’ is normally recognised as of universal acceptance, India being no exception to this.

When examine the modern judicial trends in foreign jurisdictions, no discrimination principle applies at all stages i.e., in giving advertisements, supplying application forms and in conducting interviews but not confined to any particular stage but as a special dispensation to females, some reservation in jobs can be maintained in favour of fair sex.

In fact, Article 16 of the Indian Constitution also declares that discrimination on sex alone in providing employment in public services to both females and males is strictly prohibited.

Though so far there no reservations of jobs in private employment,we must appreciate and applaud that discrimination on basis of sex is not rampant in this sector as more and more females are given employment depending on their merit and suitability of their skills for the job.

The following very interesting decisions from United Kingdom given under The Sex Discrimination Act, 1975 (called as ‘The SD Act’) may be referred for future guidance in India though similar case law may not be found in India.

Part-I, Arrangements for the purpose of determining who shall be employed

It is relevant to note that under s.6(1)(a) of The SD Act with regard to the arrangements made for determining who should be offered employment it is not necessary to show that there was a discriminatory intention. It is sufficient merely to establish that the arrangements made operated in a discriminatory way. Thus, in Ms. Brennan v J H Dewhurst Ltd Brennan, a woman, applied for a job as a butcher’s assistant.

The district manager of the respondent had organised the recruitment for the post in question but he had delegated initial interviews to the shop manager where  the new assistant would be working. The shop manager indicated to Brennan that he had no intention of employing a woman. She was later informed that the job had been filled (although in fact the district manager had decided not to fill the position at that time and did not do so until later).

It was held that there was unlawful discrimination under s.6(1) (a) and the arrangements made included giving the shop manager the discretion to filter out whom he thought were unsuitable applicants. If he did so by excluding all women who applied, the arrangements operated to discriminate unlawfully against Brennan.On the other hand, conversely, the existence of a discriminatory intention will not of itself make the arrangements at interview discriminatory and unlawful under s.6(1)(a). This can be illustrated by Ms. Impey v Hertfordshire County Council where Impey applied for a school caretaker’s job. The headmistress indicated to the head of the education department that she preferred to appoint a man. This discriminatory statement did not, however, form part of the arrangements made for selection for the job and there had been no discrimination in practice as a better qualified candidate had been fairly selected without sex bias. Although there might have been an intention to discriminate, the arrangements made were not themselves discriminatory.

There are some useful cases on the types of questions that are put to applicants at interview and whether they are unlawful because they amount to discriminatory arrangements for recruitment for a job under s.6(1)(a) of The SD Act.

For instance, In Ms. Saunders v Richmond Upon Thames Borough Council Saunders, a professional golfer, applied to the Council for the position of golf professional at a golf course at Fulwell. She was one of seven applicants shortlisted for interview. She did not make it to the final list.

Even though, there no reservations of jobs in private employment, we must appreciate and applaud that discrimination on basis of sex is not rampant in this sector

Among the questions she was asked were: ‘Are there any women golf professionals in clubs?’ ‘So you’d  be blazing a trail? would you?’ ‘Do you think men respond as well to a woman golf professional as to a man?’ ‘If all this is true, you are obviously a lady of great experience but don’t you think this type of job is rather unglamorous?’ ‘Don’t you think this is a job with rather long hours?’ ‘I can see that you  could probably cope with the playing and teaching side of the job but I am rather concerned as to whether you could cope with  the management side.’ ‘If some of the men were causing trouble over the starting times on the tee, do you think you  would be able to control this?’

Perhaps surprisingly, the Industrial Tribunal (known as ‘Tribunal’) held that the questions did not amount to unlawful arrangements for selection for the job but the Employment Appellate Tribunal (known as ‘EAT”) did not interfere with this decision. The EAT said the question of whether such questions amounted to arrangements within the meaning of s.6(1)(a) was a question of fact in each case. This would involve a   onsideration of the circumstances in which and the purpose for which the question was asked. The industrial tribunal in the present case had, having properly considered the matter, found as a fact that the questions were not discriminatory and that decision could stand.

Discriminatory questions asked at interview do not by themselves show that there has been direct discrimination and it is for the woman to prove that there has been discrimination under this section

The EAT considered, however, that some of the questions asked at the interview reflected an out-of-
date and proscribed attitude of mind and such questions might be very relevant in some cases when it came to the issue of whether there was direct discrimination against a woman in not appointing her. In the present case, however, the circumstances, including the qualifications of the applicant when compared with other candidates, did not give rise to an inference of such discrimination. In Ms. Brice v J Sainsbury plc by contrast, Brice, a woman, applied for a job as a management trainee. At interview she was asked if she planned to get married and have a family. All single applicants, male and female, were asked whether they were planning to get married but no single male was asked whether there were any plans to have a family. The Tribunal found that the employers had discriminated in the arrangements they had made for selection under s.6(1)(a) of SD Act.

In s. Gates v Wirral Borough Council the applicant, a woman, was asked at her job interview, inter alia, about ‘her relationship with her husband, whether she was a ‘Miss’ or ‘Mrs’, whether she was legally separated from her husband and whether she intended to have a family in the near future or what will you do when the children are sick?’ Those types of questions were not in fact put to any male candidate. The industrial tribunal found that the questions were discriminatory and the employer had unlawfully discriminated against the applicant under s.6(1)(a) of the SDA in the arrangements made for the interview for determining who should be appointed to the post.

It is very interesting to observe that in Gates ‘putting these questions only to women applicants may be discriminatory’ but it suggests that ‘asking men the same question eliminates the discrimination’. To some extent, however, this decision is not particularly helpful. This suggestion, of course, is absurd as ‘it is the answers to the questions that will affect an employer’s decision’.

How can employers get the message home to interviewers and avoid liability?

As per EOC’s Guidelines, the following non-medical questions, may be asked.

‘What is your husband’s employment?’; ‘Do you have a boyfriend?’; ‘Are you planning to get engaged or married?’ and the following

medical questions; eg, ‘Do you suffer from period pains?’; ‘Are you pregnant/do you intend to become pregnant?’; ‘Do you suffer from menstrual disorders?’; ‘Are your periods regular?’ ‘Are you on the pill?’; ‘Do you intend to start a family?’; ‘Have you ever hada baby?’; ‘Have you ever suffered a miscarriage?’ are potentially unlawful.

It is submitted that, in general, and as far as possible, questions should be asked along neutral lines; relevant to the job; free of sex bias, and asked of both men and women.

Not offering a woman a job because of her sex, takes place where, very often, when less qualified man is offered the job in preference to a better qualified woman.

Of course, discriminatory questions asked at interview do not by themselves show that there has been direct discrimination and it is for the woman to prove that there has been direct sex discrimination under this particular section.

However, if a less well qualified man has been appointed in preference to a better qualified woman, an inference of discrimination can be raised as explained in Barking and Dagenham London Borough Council v Ms. Camara. And if discriminatory questions are asked at interview this could lend support to a woman’s claim that she has been excluded from the job by reason of her sex and not non-sex related factors, such as qualifications, ability and so forth. Sometimes an advertisement may be declared to be discriminatory as it was held in Equal Opportunities Commission where an employer advertised that he wanted a ‘good bloke’ (or blokess to satisfy law makers) as this advertisement indicates, or may reasonably be understood to indicate, that there is an intention to discriminate, unless a particular sex or race is a genuine occupational qualification for the job. There was discrimination as ‘this advertisement can reasonably be understood to mean that women need not apply for the post’. As such words like ‘salesgirl’, ‘post-women’ and ‘stewardess’ may bring discrimination cases in future.

Part-II, Refusing or deliberately omitting to offer employment on basis of sex.

Any employer who refuses to give employment to a person solely on the basis of their sex (or race) commits an act of discrimination. In Ms. Batisha V. Say an employer declared that a job as a ‘cave- guide’ was a ‘male’s job’ and so a women was turned on that reason. It was held that discrimination had taken place. Similarly in Owen & Briggs V. James there was discrimination on the grounds of race when a woman was rejected for a job even though she had a better shorthand speed than the successful applicant when it was shown that the interviewer had said to the successful applicant, ‘why take on a coloured girl when English girls are available?’ The Court of Appeal rejected the employer’s argument, that ‘there could only be discrimination where race was the sole factor’ involved in selecting a candidate. It is sufficient that sex (or race) is an important factor in the employer’s decision.

Part-III, Freezing the job by not giving it to female or male A peculiar problem may come to the fore where a person is rejected on the grounds of sex but no one is appointed to the job because of the requirement that the complainant had to show she (he) had been treated less favourably than a person in the same or not materially different circumstances. In other words, a woman cannot allege that there is discrimination by arguing that she was treated less favourably than a male when even a male was not appointed to the post. There are two early conflicting Employment Tribunal decisions in this area. In Ms. Roadburg V. Lothian Regional Council a man and a woman applied for a job. The woman was told she was unsuitable because she was a woman. The man was offered the job, but the post was then frozen as it was not filled. The tribunal held that ‘there had  been discrimination’.

In contrary decision, in Ms. Thorn V. Meggit Engineering Ltd no one was appointed to the post after a women was rejected for  the job simply because she was a woman. It was held that ‘there was no question of discrimination’ as there was no less favourable  treatment to a woman-applicant than a man because since a man had not also been appointed by keeping the post vacant. While these decisions may appear to be in conflict, they can be reconciled by drawing a distinction in the two cases. In Roadburg, at least, the man was offered the job while the woman was not, before it was frozen so as to come to the decision that there was discrimination at that stage of making an offer. But in Thorn, no offer to either of the applicants was made and the post was not filled. In other words, if a woman applies for a job and is rejected because she is a woman, how can she argue she had been treated less favourably than a man when a man also does not get the job? This still left the law in the ridiculous position that if no one was offered the job there could be no discrim ination. The Employment Tribunal has now clarified legal position to some extent by its decision in Brennan case. A girl applied for a job as a butcher’s assistant. The job was not given to her because she was female. After interview was held, the post was frozen. It was held that the interview was the source of discrimination. This decision may be of help to the claimants, if there is evidence from the interview stag  of a job, but will make it very difficult to prove discrimination if that evidence does not exist when the post is not filled.

Part-IV, Dismissal of Female employees

In Ms. Gubala V. Crompton Parkinson Ltd., a woman was selected for redundancy (and removed from service by an employer) even when she had longer service than her male counterpart, because the man was the breadwinner in his family. It was held that she had been discriminate against. By contrast, in Ms. Gault V. Reay Electrical when it was discovered that a female employee had married a competitor of her employer, she was dismissed. It was held that the reason for her dismissal was not her sex or marital status but rather whom she had married to hold that there was no discrimination, but may be a reasonable apprehension that she may pass on valuable information to her husband, competitor. This decision can be compared with the later decision in Skyrail Oceanic Ltd V. Mrs. Coleman where a female employee engaged to an employee of a rival firm, both employers decided that she should be the one to lose her job as her husband would be the breadwinner. The court of Appeal decided she had suffered discrimination as her dismissal was primarily an assumption based on her sex. It appears that there is no distinction between public and private employment in cases of discrimination. The SD Act seeks to prevent discrimination in both contractual and non-contractual aspects of employment. There is hope that the Indian Legislature and Judiciary may also step in to curb discrimination in employment law.

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