EDITORIAL: Equity in employment
Recent local legislation concerning the employment relation demonstrates a desire by the state to bring a more equitable and humanising motif to bear on a relation that was once titled “master and servant”, but which is now the more co-operative “employer and employee”.
The Employment Rights Act 2012 introduced the concept of unfair dismissal, requiring the employer to utilise the notion of fairness at every stage of the dismissal process. This concept heralded a degree of dignity for the employee who no longer would be treated as an easily disposable commodity.
And last week, the House of Assembly debated the Employment (Prevention of Discrimination) Bill that seeks to remove employer misuse of discrimination on certain grounds to influence decisions in all aspects of the employment relation, from the advertisement for the job, to the hiring process to the terms and conditions under which the work is done.
It bears reminder that there already exist some forms of anti-discrimination protection for the individual employee; The Trade Unions Act, Cap.361 makes it a criminal offence for an employer to affect adversely the employment of a worker on account of the latter’s trade union membership or activity; the Employment Rights Act proscribes as automatically unfair a termination of employment on certain discriminatory grounds; the Criminal Records (Rehabilitation of Offenders) Act prohibits discrimination in some instances on the basis of a spent conviction; and there is section 23 of the Constitution, although that is limited to discrimination by the State organs as employers.
The current Bill is therefore directed to private sector employment mainly. The prohibited grounds are as to be expected, although there are three likely to give pause for differing reasons. These are sexual orientation, domestic partnership status, and physical feature.
The first does so, not because of its clear irrelevance to the employment relation, but because of the previous official reluctance to have it included as a prohibited ground of discrimination in the Constitution. It might also pose a difficulty for some employers wedded to Christian values, although the dictum of “don’t ask, don’t tell” might resolve any problem. However, clauses11 to 13 appear to limit the ambit of the protection on this ground, a point that seemed to have escaped debate in the House.
The second is novel, but in our view, the domestic relationships or arrangements of an employee, prospective or actual, are equally irrelevant to the main objective of an employment relation.
According to the interpretation section of the Bill, “physical feature” is defined as including “the height, weight, shape and size, and any distinguishing mark or peculiarity, of a person”. This prohibition comes pretty close to regulating personal taste and one wonders at its place in such a statute at all. It is acknowledged, however, that in some cases, these qualities may be considered bona fide occupational qualifications and thus be excepted.
Our main disappointment with the Bill is that it does not reverse the burden of proof in establishing discrimination in employment. Discrimination is notoriously difficult to prove and an employee could scarcely be expected to be in possession of cogent evidence of discrimination by an employer. Section 21 of the similar St Lucian legislation is instructive:
(1) Except where otherwise provided in this Act, the person alleging a violation of this Act shall bear the burden of presenting a prima facie case of discrimination or an offence related to discrimination under this Act.
(2) Upon a prima facie showing of discrimination, the burden of proof shall shift to the respondent to disprove the allegations.