On 29th March 2023, I submitted my third module assessment, Employment Law, for the MSc Human Resource Management at the University of London. The exam was structured as multiple-choice questions regarding Common Law tests and discrimination laws. Below is the second of two answers I wrote.
On 8th June 2023, my assessment was graded "78 (Merit)".
Human Resource Strategies
Q2. “The issue of discrimination in employment is central to HR practice and supported by anti-discrimination laws. Critically evaluate this statement concerning key legislation, two protected characteristics, and their related types of discrimination.”
The issue of discrimination in employment refers to the unfair or biased treatment of individuals based on individual traits such as race or age, among others (Dickens, 2007). Such treatment can occur at any stage of the employment process and may result in long-lasting negative impacts on those affected (Hoque & Noon, 2004). Similarly, Human Resource (HR) practices are crucial in tackling workplace discrimination, as they create and execute policies, processes, and programs that encourage fairness, equality, and diversity (Williams et al., 2011). As a legal basis for HR practices, anti-discrimination laws, such as the UK’s Equality Act (EA) 2010, define protected characteristics and prohibit discriminatory conduct (Equality Act, 2010). Such laws hold employers accountable for their actions and promote a more equitable work environment (Adams, 2019). The assertion that discrimination in employment is central to HR practice and supported by anti-discrimination laws will be critically evaluated by examining the critical legislation, two protected characteristics (sex and disability), and associated forms of discrimination.
As a protected characteristic, sex pertains to the biological and physiological distinctions between males and females (Equality Act, 2010). The primary legal framework for addressing sex discrimination in the UK is the EA, which updated earlier regulations, including the Sex Discrimination Act 1975. The EA aims to protect individuals from unfair treatment based on their sex in society, including employment. Direct discrimination related to sex occurs when an individual is treated less favourably due to their sex (i.e., an employee is denied promotion because she is a woman). Indirect discrimination transpires when an outwardly neutral policy or practice disproportionately disadvantages a specific sex (i.e., an organisation mandates all employees to work full-time, inadvertently impacting women because they are statistically more likely to bear childcare responsibilities) (Taylor & Emir, 2019). Harassment follows unwanted conduct related to sex that infringes dignity or fosters a hostile, degrading, or humiliating environment (i.e., sexual harassment or sexist remarks). Relatedly, victimisation arises when an individual is mistreated for making or supporting a complaint about sex discrimination or is suspected to have done so (i.e., a male employee experiences retaliation for supporting a female colleague’s harassment claim).
Two cases exemplify implication and application. In Bury et al. v Hamilton and Others (2011), the Employment Appeals Tribunal ruled that female employees were not paid bonuses equally to male colleagues and instructed the employer to pay the entitled bonus payments (Bury et al. v Hamilton and Others, 2011). In the legal matter of Michalak v Mid Yorkshire Hospitals NHS Trust (2011), a female worker was granted £4.5 million as compensation after the Employment Tribunal established that her employer had exhibited discrimination related to her sex and ethnicity (Michalak v The Mid Yorkshire Hospitals NHS Trust, 2011).
Although the EA has raised awareness of sex discrimination and fostered equal treatment for both sexes in the workplace, sex discrimination remains widespread in the UK (Rubery & Grimshaw, 2015). The obstinacy of the gender pay gap and the ongoing underrepresentation of women in senior management positions remain significant issues (Hoque & Noon, 2004). An effective enhancement may include bolstering enforcement mechanisms for the Equality and Human Rights Commission (Taylor & Emir, 2019).
As a protected characteristic, disability is defined as a physical or mental impairment that significantly and enduringly hinders an individual’s ability to perform everyday activities (Equality Act, 2010). The primary UK legislation addressing disability discrimination is the EA, which supersedes previous anti-discrimination laws (i.e., the Disability Discrimination Act 1995). The EA’s objective is to protect individuals from unjust treatment based on disability in society, including employment. Direct discrimination related to disability arises when an individual receives less favourable treatment than another without a disability under identical or comparable circumstances (i.e., denied employment or promotion due to disability). Indirect discrimination occurs when a seemingly neutral policy, practice, or procedure disproportionately affects individuals with disabilities (i.e., non-essential job requirements unintentionally excluding individuals with specific disabilities) (Jones et al., 2016). Disability-related harassment entails unwanted conduct infringing on dignity or generating an intimidating, humiliating or offensive environment (i.e., inappropriate comments) (Emerson et al., 2021). Relatedly, victimisation occurs when an individual is subjected to unfair treatment for filing a complaint or supporting another regarding disability discrimination (i.e., social ostracism by colleagues).
Two cases exemplify implication and application. In Austin v Leeds et al. (2017), an employee was dismissed due to a conflux of disabilities. The Employment Tribunal ruled in favour of the employee, stating they had been subject to disability discrimination and awarded £300,000 in compensation (Austin v Leeds et al., 2013). In Carrabyne v Department for Work and Pensions (2017), an employee was dismissed due to incapacity from poor attendance. However, the Employment Tribunal ruled in favour of the employee, partly for the employer’s failure to make reasonable adjustments for disability and awarded £110,165 in compensation (Carrabyne v Department for Work and Pensions, 2017).
While the EA has provided a coherent framework for employers’ use and introduced the concept of reasonable adjustments, this concept can be subjective, resulting in inconsistent application and interpretation (Taylor & Emir, 2019). Increasing awareness and diminishing stigma may ensure employers are better informed (Emerson, 2021).
HR is crucial in remedying discrimination complaints by conducting comprehensive investigations, supporting affected employees, and ensuring appropriate disciplinary actions against perpetrators (Bowling & Beehr, 2006). Some examples of effective HR practices include anonymous recruitment processes, unconscious bias training, and employee resource groups for those underrepresented (Slater et al., 2008). Best practices can extend to diversity targets and connect diversity and inclusion initiatives to organisational performance metrics for accountability (Nishii, 2013). However, HR practices can encounter limitations and challenges, from unconscious bias, change resistance, or insufficient resources (Taylor & Emir, 2019). To enhance HR’s role, organisations should invest in continuous training for HR practitioners to ensure effective management of such initiatives (Rynes et al., 2007).
Analysis has demonstrated the crucial role of HR practices in promoting workplace diversity and the importance of laws such as the EA in protecting individuals from unfair treatment (EHRC, 2011). HR practitioners are responsible for implementing policies to ensure equal opportunities, while anti-discrimination laws hold employers accountable and offer a means of redress for employees (Köllen, 2021). Progress has been made in addressing employment discrimination. However, further improvements could be achieved by fostering awareness, inclusivity promotion, and HR practice refinement through vigorous monitoring and proactivity (Tatli, 2011). Despite significant progress made by current HR practices and anti-discrimination laws, ongoing efforts are required to safeguard fair and equitable treatment (Healy et al., 2011).
- Adams, Z. (2019). Labour law and the labour market: Employment status reconsidered. Law Quarterly Review, 135, 611-634. https://doi.org/10.17863/CAM.35039
- Austin v Leeds Teaching Hospitals NHS Trust. (2017). 1801339/2017. https://www.gov.uk/employment-tribunal-decisions/miss-s-j-austin-v-the-leeds-teaching-hospitals-nhs-trust-1801339-2017
- Bowling, N. A. & Beehr, T. A. (2006). Workplace harassment from the victim's perspective: A theoretical model and meta-analysis. Journal of Applied Psychology, 91(5), 998-1012. https://doi.org/10.1037/0021-9010.91.5.998
- Bury Metropolitan Borough Council v Hamilton and Others. (2011). UKEAT 0413-5_09_2801. Retrieved from https://www.bailii.org/uk/cases/UKEAT/2011/0413-5_09_2801.html
- Carrabyne v Department for Work and Pensions. (2017). Case No. 2400909/16. Retrieved from https://www.gov.uk/employment-tribunal-decisions/mrs-c-carrabyne-v-the-department-for-work-and-pensions-2401990-2016
- Dickens, L. (2007). The road is long: Thirty years of equality legislation in Britain. British Journal of Industrial Relations, 45(3), 463-494. https://doi.org/10.1111/j.1467-8543.2007.00624.x
- Emerson, E., Stancliffe, R., Hatton, C., Llewellyn, G., King, T., Totsika, V., Aitken, Z. & Kavanagh, A. (2021). The impact of disability on employment and financial security following the outbreak of the 2020 COVID-19 pandemic in the UK. Journal of Public Health, 43(3), 472-478. https://doi.org/10.1093/pubmed/fdaa270
- Equality Act 2010 (EA). (2010). c. 15. Retrieved from https://www.legislation.gov.uk/ukpga/2010/15/contents
- Equality and Human Rights Commission (EHRC). (2011). Equality Act 2010 Code of Practice. Retrieved from https://www.equalityhumanrights.com/en/publication-download/employment-statutory-code-practice
- Michalak v Mid Yorkshire Hospitals NHS Trust and Others. (2011). Case Nos 1808465/2007, 1808887/2008, 1810815/2008. Retrieved from https://data.parliament.uk/DepositedPapers/Files/DEP2014-1569/1810815_2008_Judgment.pdf
- Healy, G., Bradley, H. & Forson, C. (2011). Intersectional sensibilities in analysing inequality regimes in public sector organisations: Intersectional sensibilities and inequality regimes. Gender, Work, and Organisation, 18(5), 467-487. https://doi.org/10.1111/j.1468-0432.2011.00557.x
- Hoque, K. & Noon, M. (2004). Equal opportunities policy and practice in Britain: Evaluating the 'empty shell' hypothesis. Work, Employment and Society, 18(3), 481-506. https://doi.org/10.1177/0950017004045547
- Jones, M. K., Latreille, P. L. & Sloane, P. J. (2016). Job anxiety, work-related psychological illness and workplace performance. British Journal of Industrial Relations, 54(4), 742-767. https://doi.org/10.1111/bjir.12159
- Köllen, T. (2021). Diversity management: A critical review and agenda for the future. Journal of Management Inquiry, 30(3), 259-272. https://doi.org/10.1177/1056492619868025
- Nishii, L. H. (2013). The benefits of climate for inclusion for gender-diverse groups. Academy of Management Journal, 56(6), 1754-1774. https://doi.org/10.5465/amj.2009.0823
- Rubery, J. & Grimshaw, D. (2015). The 40-year pursuit of equal pay: A case of constantly moving goalposts. Cambridge Journal of Economics, 39(2), 319-343. https://doi.org/10.1093/cje/beu053
- Rynes, S. L., Giluk, T. L. & Brown, K. G. (2007). The very separate worlds of academic and practitioner periodicals in Human Resource Management. Academy of Management Journal, 50(5), 987-1008. https://doi.org/10.5465/AMJ.2007.27151939
- Slater, S. F., Weigand, R. A. & Zwirlein, T. J. (2008). The business case for commitment to diversity. Business Horizons, 51(3), 201-209. https://doi.org/10.1016/j.bushor.2008.01.003
- Tatli, A. (2011). A multi-layered exploration of the diversity management field. British Journal of Management, 22(2), 238-253. https://doi.org/10.1111/j.1467-8551.2010.00730.x
- Taylor, S. & Emir, A. (2019). Employment Law: An Introduction (5th edn). Oxford University Press.
- Williams, S., Abbot, B. & Heery, E. (2011). Civil regulation and HRM: The impact of civil society organisations on the policies and practices of employers. Human Resource Management Journal, 21(1), 45-59. https://doi.org/10.1111/j.1748-8583.2010.00134.x