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Opinions Sun, 15 Dec 2013

African workforce and their equality act.

The appalling, drastic and traumatic measures meted out to employees by their various employers in Africa is very bad, illegal and still uncouth to the standards of modern civilization .

The fundamental outlook of this issue is focused and lays important emphasis on the 'carnage': discrimination in employment within the African Continent at large.

In accordance with its explanation, nature, and relevance to legislation in the English Legal System, as practiced in England and Wales, Discrimination is inappropriate whatsoever to humanity and society alike.

So, by experiencing or juxtaposing its practicality in Africa, would it not be legally right, humanly correct and fundamentally advantageous if these same legal instruments are accessed and enjoyed by the local, ordinary and common people living in some other Commonwealth Countries?

But it does not seem to be the case. Why? Is it because our Judicial Institutions are under-performing, or the people just do not care ?

If anything, Mother Africa and her beloved, peaceful and intelligent Children deserve if not good then a better system of Equality, Justice, and finally the so called Freedom everyone is looking and waiting for.

Due to the lack of perhaps Money, knowledge and finally Lawyers to addressing the law in employment and its related issues, most workers are still not enjoying the benefits of the Equality Act in the remotest part of the world.

There were all sorts of discrimination against humanity and society argumentatively in employment; some direct, others indirect in the European World. And this was long before the enactment and subsequent implementation of the Equality Act 2010.

The Equality Act 2010 for that matter , is for the overall provision of equal right, and justice for all in the society (debatably). This is in accordance with the English Legal System.

Under the Equality Act 2010 of the English Legal System, there are characteristics that are grouped into different and various sections, which are to guard and protect the society against any given discrimination in question.

In the English Legal System, these characteristics are known as The Protected Characteristics.

These Protected Characteristics include:

Age which could be found in the section 5 of the Equality act 2010,

Disability which can be located in the section 6 of the Equality Act 2010,

Gender reassignment is listed in the section 7 of the Equality Act 2010,

Marriage and Civil Partnership as written in the section 8 of the Equality Act 2010,

Pregnancy and Maternity as described in the section 17 and 18 respectively within the Equality Act 2010,

Race as explained in the section 9 of the Equality Act 2010,

Religion or belief as stated in the section 10 of the Equality Act 2010, in addition to

Sex and Sexual orientation as described in the section 12 of the Equality Act 2010.

Therefore, the Protected Characteristics of the Equality Act 2010 are the devices and instruments enacted by legislation to guard and protect against discrimination.

Discrimination is defined as the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age or sex.

Therefore in relation to employment and vocation within the Equality Act 2010, the appearance of Indirect Discrimination is defined as when a person discriminates against another person or persons if they apply such person/persons to a provision, criterion, or practice which the discriminator applies or would apply equally to another person but;

(1) Which is such that it would be to the detriment of a considerably larger proportion of the person discriminated against and

(2) Which the discriminator cannot show to be justifiable irrespective of the person (s) to whom it is applied to, and

(3) Which is to their detriment.

In connection to employment and vocation as stated in the Equal Act 2010, the appearance of Direct Discrimination is defined as when a person is discriminated against on the grounds of provision, criterion or practice which the Discriminator can justify.

Relative to the Equal Act 2010, Harassment would be defined as an occurrence on the grounds of Sex, Race, or Ethnic, or natural origins or sexual orientation or religion or belief or for a reason which relates to a disable person’s disability-

For example Mr (A) engaging in unwanted conducts which has the purpose or effect of,

(1) Violating Mr (B)’s dignity; or

(2) Creating an intimidation, hostile, degrading, humiliation or offensive environment for Mr (B).

The appearance of victimisation as defined within the Equal Act 2010 states as, when a person is discriminated (Victimised) against in respect of any provisions of the act (Sargeant & Lewis 2008).

Distinguishing between Direct and Indirect discrimination with illustrations from case law is as follows.

Direct Discrimination: These were cases where direct discrimination was used.

In R vs. Birmingham City Council [1989], this was a case where a complaint was lodged by the equal opportunity commission against Birmingham City Council for the disproportionate allocation of places for boys and girl grammar schools in Birmingham. The s.23 (1) was enforced by the jurisdiction.

In Zafar vs. Glasgow City Council [1998], this was a case where the court ruled in favour of Mr Zafar an employee of Glasgow City Council, for wrongful dismissal by delaying in dealing with complaints lodged against him.

In Laing vs. Manchester City Council [2006].

In Balamoody vs. UK Council for Nursing [2002].

In A’Lee vs. Tayside Regional Council [1993].

In Abdul-Rasheed vs. Chubb Security Personnel Ltd [2006].

In Abraham vs. Fenland District Council [1994].

In Afolabi vs. London Borough of Southwark [2000].

In Bah vs. Dayat Food Ltd [2004].

In Benson vs. Telewest communicatin [2004].

In Bhuva vs. Watford Council [2003].

In BL Cars Ltd vs. Brown [1985].

In Bishop vs. Nails Inc. [2005].

Indirect Discrimination is defined as a process where an employer has applied requirements or conditions to a job, but the ability of some persons to comply because of sex, race, or marital status is considerably smaller and cannot be justified.

A case law where Indirect Discrimination was evident was that of Falkirk City Council vs. Whyte in 1997.

This is when the industrial tribunal found that one of the factors applied by the employer (British Leyland) as a criterion for the selection for a managerial post-was a “ requirement or condition” notwithstanding that it was stated to be “desirable” qualification rather than an “absolute must” for the post, where it was clear that the qualification operated as a decisive factor in the selection process.

As in the case of Azam vs. JH Walker Ltd in 1994, the Employment Appeals Tribunal clarified the test for Unintentional Indirect Discrimination.

They did so by referring to the Race relations (and Sex Discrimination) Acts by holding that a tribunal is entitled to infer an intention to discriminate where an employer knew when it applied the requirement or condition in question that unfavourable treatment on racial grounds would result and where it wanted those consequences to follow.

Below are case laws where Indirect Discrimination was evident.

In Falkirk City Council vs. Whyte [1997].

In Mead Hill and National Union of Civil and Public Servant vs. British Council [1995].

In London Underground vs. Edwards [1998].

In Shamoon vs. Chief Constable of the RUC [2003].

In Commission vs. United Kingdom [1984].

In Aina vs. Employment Service [2001].

In Anya vs. (1) University of Oxford (2) Roberts [2002].

In Azam and others vs. JH Walker Ltd [1994].

In Dillion vs. Ford Motors Co Ltd [2003].

In Gallant vs. Church of Scotland Board of Social Responsibility [2002].

In HM Prison Service vs. Potter [2006].

In Hussain vs. Streamline Taxis [1997].

In Kang vs. RF Brookes Ltd [1999].

As practiced in England and Wales, there are rules and regulations that guard against the contraventions of an employee’s contract with an employer and vice versa. The resultant breaching of such contract needs remedies to resolve such issues.

These remedies are not wide opened, but rather come with limitations of actions. Therefore, there are remedies should in case of a resultant discrimination, be it Direct, Indirect, Harassment or Victimisation.

As explained in the Equality Act (EA) (2010) s. 24, the step the court of tribunal may take is either,

(1) Declare the rights of the complainant and that of the respondent , in relation to the point of the matter to which the proceedings involve, or

(2) Order the respondent to pay compensation to the complainant, or

(3) Make an appropriate recommendation in accordance with the proceedings. The available remedies are further section into groups such as,

(a) Less Serious Cases: These are cases where the complainants discriminated against, harassed or victimised, are awarded the sum between £500 to £6.000.

(b) More Serious Cases: These are Cases where the complainants victimised, harassed or discriminated against are awarded the sum between £6.000 up to £18.000.

(c) Most Serious Cases: These are cases where the complainants harassed, victimised or discriminated against, are awarded the sum between £18.000 up to £30.000. Below are examples of cases where compensations were awarded (Sergeant & Lewis 2008).

In HM Land Registry vs. Mcglue [2011]

In Broome vs. Cassel [1972]

In HM Prison Services vs. Salmon [2001]

In British Telecommunication plc. vs. Reid [2004]

Some other Remedies available for the contraventions are as follows,

Damages Generally: This is the main remedy for the breach of contract and the rules of law relating to an award considering the said damages.

Damages are divided into Liquidated and UnLiquidated damages (Smith & Keenan 2008).

Liquidated Damages come into enforcement as and when there is a provision of a genuine pre-estimation of loss, and not a penalty inserted in order to make it a bad deal for the defendant not to have carried their part of the contract. An example of such case was,

In Ford Motors Co (England) Ltd vs. Armstrong [1995] where there was no genuine pre-estimation of loss. And,

In Cellulose Acetate Silk Co vs. Widnes Foundry Ltd [1933] where the liquidated damages loss was smaller.

Unliquidated Damages: These are the assessment of provisional damages that are intended as compensation for the claimant’s loss and not as punishment for the defendant. An example of such a case was,

In Beach vs. Reed Corrugated Cases Ltd [1956] where the damages were compensatory.

There are other Remedies such as damages that are recoverable and those that are remote. The recoverable loss can include financial loss, personal accident and damage to property.

To some extent, there is the availability of compensation for damages occurring from disappointment, vexation and even mental distress.

Remoteness: These are damages that are far too remote to ascertain due to lack of its proximity. Therefore the terms and conditions of a contract need to be proximate in order to apply remedies to damages.

An example of such case was Hadley vs. Baxendale in 1854, where Hadley who happened to be a mill owner sued Baxendale a transporter, for not delivering his broken shaft in time form the repairer as a result of delaying.

Baxendale was charged to pay Hadley an amount of £25 as the cost of the delay.

The Mitigation of loss is another remedy that is structured to injury persons. In that, they would have to reduce their losses (mitigate), in every possible reasonable way before the insertion of a remedy. An example of such a case was,

In Brace vs. Calder [1895] where there was a mitigation of loss, and

In Carter (Councils) Ltd vs. McGregor [1961].

The effect of the Human Right Act which came into existent since the year 2000 has arguably lifted the lid, on some miscarriages of justice in the English Legal System before its inception . This is due to the amount of freedom it contains within its administration.

Because it stipulates that,

(1) Judges must read and give effect to legislation in a way which is compatible with the European Convention’s rights.

(2)It is unlawful for a public authority to act in a way which is incompatible with any of the European Conventions. Therefore arguably, in a situation where an individual is not satisfied with their judgement, they can always take it higher to the European Court of Justice for the ultimate hearing.

Therefore, the effect of discrimination on claims in relation to employment means, much pressure would be put on employers to treat their employees according to the Employment Act, so as to avoid prospective lawsuit and its subsequent remedies and damages.

In all, the Human Right Act 2010 protects the Protected Characteristics that protects the society against any false jurisdiction of justice, in relation to discrimination, victimization or harassment.

So retrospectively, what would all African Nations loose if they embark heavily on the pragmatic usage of the Equality Act 2010 vis a vis Employment Act.

Fundamentally, Socially and Systematically it does not matter where one lives, whether in the hinterlands or the four corners of the world, whether English or African, once you are a Living Being, one is supposed to possibly enjoy the full scope of the Equality Act 2010 no matter your circumstance(s), given the status of Human Right.

BY YAW NKETIA: TOUCHING YOU FROM A DISTANCE WHILE COLLECTING, COLLATING AND REPORTING AS JOURNALISM DEMANDS.

Columnist: Nketiah, Yaw