Table of Contents
Discrimination is simply denoted as an act of biases, which can be both conscious and/or an unconscious conduct that inhibits equal opportunities for people within a defined environmental setting, such as in the workplace, within the community setting and similar other barriers (Kang & Banaji, 2006). In common beliefs, discrimination is perceived as an unjustified and immoral act that differentiates amid people based on factors such as age, sex, race, ethnicity, religion as well as disability. These factors are noted as the protective characteristics as per section 14(2) of the Equality Act 2010 (Crown, n.d.). Governmental interventions have therefore helped to secure the interests of individuals who are deemed vulnerable to these sorts of discriminatory practices at their workplace and other settings. For instance, section 13(1) of the Equality Act 2010 refers discrimination as the practice of one entity (A) to differentiate the opportunities liable for another entity (B) due to the defined protective characteristics, leading to differences in the treatment of entity B and that received by others (Crown, n.d.).
Nonetheless, it is not always that discriminatory practices imply injustice and unfair workplace conducts. Arguably, when the managers in the organization are gifted with more valued concessions as compared to the gifts presented to other subordinates at lower designations, it can be illustrated as fair discriminations, whereby the hierarchical roles, responsibilities, and eligibilities are differentiated within the workforce. There are other instances as well, where discrimination is referred as legitimate and are used to implement fair decisions of dismissal. These justifications are often prompted on the basis of the aims and objectives, pertaining to an employee’s dismissal. In the discussion henceforth, these potentially fair and justified reasons for dismissal will be elaborated with reference to relevant case examples and legislation applicable to the context.
Fairness of Discrimination in a Workplace Environment
The Equality Act 2010 propounded in the UK, aims to present a lucid framework related to workplace management to avert the occurrences of unfounded as well as unfair treatment of employees as a result of discrimination. The legislation in this context, delineates discrimination primarily in two distinct forms namely, the practices of direct discrimination as well as that of the indirect discrimination pertaining to the list of secluded characteristics comprising Age, Marriage and Civil Partnership, Disability, Race, Gender Reassignment and Sexual Orientation among the most prominent ones (Crown, 2010). Direct discrimination in this context indicates the inequalities observed in the treatment of personnel working in the same designated position and sharing similar job roles to the organization (Crown, 2010). On the other hand, section 19(1) of the act defines indirect discrimination as practising unequal management of workers by implementing prejudiced provisions or criteria (Crown, 2010). Illustratively, age-based direct discrimination occurs when a particular individual is treated less favourably as compared to their peers owing to their age, such as in the case of Thomas v Eight Members Club and Killip ET/2202603/2007 (Barnard, 2008). Similarly, imposing barriers for eligibility based on their age can be considered as an illustration of indirect discrimination although it has justified grounds and objectives to make it a potentially fair practice for recruitments as well as dismissals, as can be witnessed in the case of Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias and Harrod & Ors v Chief Constable of West Midlands Police & Ors  EWCA Civ 191 (Employment Cases Update, 2017; Court of Justice of the European Union, 2016).
When considering most of the other protective characteristics and their relevance to direct and indirect discriminatory practices, similar dilemmas on the fairness of discrimination and employee dismissal can be witnessed. As in the context of disability, discrimination is considered as unfair when it hinders the abilities of the person to perform at their full capacity without a justified ground or rationale [Government Legal Service v Brookes] (Menzies Law, 2017.a). Again, when the discrimination is practiced in view of the limited capacity of the individual to perform in the best interest of the company, it may be considered as a fair reason for his/her dismissal [Williams v The Trustees of Swansea University Pension & Assurance Scheme and another] (Menzies Law, 2017.b). Religious beliefs and practices also become the grounds for unfair discrimination, as was observed in the context of Glasgow City Council v McNab  IRLR 476 and Azmi v Kirkless MBC  IRLR 484. The case of Azmi v Kirkless MBC  IRLR 484, however, presented a unique dilemma amid the law enforcers raising doubts on the fairness of the alleged direct discrimination practised against Azmi with regards to her professional efficiency in classroom hindered by her practice of veiling her face. The court, however, ruled that even though there was a proof of indirect discrimination practised against Azmi, she was not treated unfairly due to her religious beliefs or less favourably from other peers at the institution. Hence, her dismissal was partially justified on fair reasons (Barnard, 2008). As can thus be observed from these case illustrations, the possibilities of having an employee dismissed for fair reasons of discrimination depend largely on the objective or the decision as well as the way it is executed.
A General Description to the Fair Reasons of Dismissal in a Workplace
UK legislation applied to the employment context to determine whether a dismissal is fair or unfair, thereby emphasizing a few common parameters to the protected characteristics as defined according to the Equality Act 2010. Arguably, the legislations perceive dismissals as ‘automatically unfair’ when employees being dismissed are observed to exercise their particular rights concerning pregnancy, child care or other family reasons, and/or trade union memberships. On the contrary, a dismissal is perceived to be fair when it is based on the employees’ misconduct, lack of adequate capacity to perform, redundancy, statutory interventions, and other reasons, which do not raise ethical doubts on the decisions taken (ACAS, 2015). With time, the legislation promoting fair dismissal of employees have evolved throughout the European nations with the continuous influx of new listed criteria aimed at distinguishing fair dismissal from the unfair ones in the larger context. Following the amendments in 1926 and justifying the grounds, on which the dismissal can be claimed as fair by the employer, in 1931 the employment protection laws expanded to include unjustifiable lack of punctuality depicted by the employee on repeated occasions, fraudulent conducts, breach of trust as well as unsuitability to the occupation. Later in the 1940s, further amendments were made to the legal statutes deterring that behavioural flaws observed in the employee in terms of habitual drunkenness, insulting and aggressive nature to others along with repeated involvement in conflicts whether involving the organization or its members at the workplace (Aleksynska & Schmidt, 2014). All these reasons are thus believed to offer a fairground to the companies to dismiss the employees found guilty of these faults.
Observably, these legislations lack adequacy in terms of their comprehensiveness and clarity, thereby fuelling debates concerning the relevancy of the classification between fair and unfair dismissals. The common grounds based on which the reasons for dismissal can be perceived as fair is the employees’ poor performance track, with continuous failure to enhance their work, poor adherence to workplace disciplines and dishonesty among others, which directly or indirectly inhibits the organizational efficiency in terms of work ethics and transparency to ensure well-being of its overall workforce. Besides, these aspects are often associated with the aspects of illness as well as the disability of the employees to perform their job roles as productively as expected, thereby leading to potentially fair discrimination in the workplace (NiDirect, n.d.). These dilemmas, in turn, give rise to dismissal conflicts at large, principally owing to the lack of transparency resulting from the conduct. As argued by Galdon-Sanchez & Guell (2001), organizations incur huge costs due to dismissals, when compensating the fired employees. At certain instances, the organizations tend to focus on identifying any possible redundancy that would allow the employee to be dismissed on disciplinary grounds, indicating it as a fair reason. However, it is also likely to attract moral hazards for the company, having limited significance in reducing the costs incurred by the organization from dismissal (Galdon-Sanchez & Guell, 2001).
Illustrations from Case Laws
Lippert-Rasmussen (2017) offered a distinctive perspective to the entire context of fair dismissal on discriminatory grounds with justification. According to Lippert-Rasmussen (2017), discrimination can be perceived as fair when it is not observed as wrong at the prima facie depending on the three factors of the line of insurance, nature of discrimination and characteristics of dismissal under scrutiny (Lippert-Rasmussen, 2017). A better understanding of the phenomenon can be observed with reference to particular landmark cases relevant to the context of both fair dismissal and justified discrimination of employees at the workplace. A landmark case in this context is that of Rubenstein v Prices Daelite (Pty) Ltd. This particular case dealt with the accusation of unfair age-based discrimination of the employee, leading to her dismissal by the company. According to the case facts, the applicant, Mrs. Maureen Rubenstein had agreed upon conditional appointment terms that her retirement age would be 63 years, as was done by other employees recruited by the firm in 1957. She was also duly notified of her retirement benefits by the company upon producing a dismissal letter for her end of employment tenure, specifying the norms of the transition. The applicant, however, sued the company for discriminating against her on the basis of her age. In response, when the case was produced in the court, it was ruled that the employer had no binding provision applicable to the employment contract to pursue the association even after the applicant had crossed her retirement age in the organization. Moreover, the interests and benefits payable to the applicant where also not compromised by the company, implying that she was dismissed fairly on account of her agreed retirement age and financial benefits (Thompson, 2010).
This particular case drew its reference from the previously ruled landmark case of Schweitzer v Waco Distributors (A division of Voltex (Pty) Ltd) (1998) 10 BLLR 1050, which stressed the importance of a clear and distinctive mentioning of the terms and conditions required to end the employment relationship with the employees designated in a particular designation to be considered as legitimate and fair. Moreover, adhering to a pre-decided age, at which the employer or the employee may demand an end of their association do not count as an instance of age-based discrimination, which justifies the dismissal based on fair reasons (SAFLII, 2002). On the contrary, in the case of Association of Professional Teachers and another V Minister of Education and Others  9 BLLR 29 (IC), instances of unfair dismissal can be observed, whereby the applicants were discriminated due to their gender and marital status to avail the benefits of housing allowances, as should have been legitimized by the Minister of Education (Aaron et.al., 1997). This further influenced the case observations in Woolworths (Pty) Ltd v Whitehead, where the provisional amendments were deemed to be indirectly discriminating the women from applying and pursuing their job in the company during their pregnancy. It was also argued on the grounds of redundancy that the organization has unfairly dismissed the employees, violating the protected characteristics and hence, was also liable for indirect discrimination (Boerefijn, 2003). As can be observed thus, whether or not a particular decision of dismissal or discrimination is justified, depends on the degree of transparency maintained by the organization when taking the decision of dismissal. Organizational interests and compensation offered to the employee dismissed on rational grounds are also taken into consideration when determining if the decision was fair.
Fairness in the dismissal of an employment relationship depends on various elements of transparency, moral considerations, and legitimacy. Key findings obtained from this research, therefore, revealed that organizational interests, employability of the professionals and the overall characteristics of employment play the roles of distinctive determinants in defining fairness of the reasons of dismissal in the workplace. Nonetheless, the legal definitions and the rules, as well as proceedings observed in the context, can be argued as limited by circumstantial evidence to justify the interests and gains of either party, i.e. the employer or the employee. As per the perceived notion, these principles commonly deliver greater importance to the rationale that the employer uses to dismiss an employee(s) at the workplace, offering no significant value to the interests of the applicants. In other words, a dismissal in a workplace as the result of discrimination is considered to be based on fair reasons if it satisfies organizational legitimacy besides balancing the mutual interests of the employer and employee relationship. It is therefore through this conditional approach that a dismissal based on discriminatory grounds is justified as fair or otherwise, indicating the need for further amendments to the legislation in order to make it more comprehensive and specific in laying out the relevant conditions.
- Aaron, B. et.al., 1997. International Labour Law Reports – 15. Martinus Nijhoff Publishers.
- ACAS, 2015. Fair and Unfair Dismissals. Advice and Guidance.
- Aleksynska, M. & Schmidt, A., 2014. A Chronology of Employment Protection Legislation in Some Selected European Countries. ILO.
- Barnard, C., 2008. New Developments in Employment Discrimination Law The UK Report. New Developments in Employment Discrimination Law, The Japan Institute for Labour Policy and Training JILPT Report, No. 6, pp. 31-52.
- Boerefijn, I., 2003. Temporary Special Measures: Accelerating de Facto Equality of Women Under Article 4(1) UN Convention on the Elimination of All Forms of Discrimination Against Women. Intersentia nv.
- Court of Justice of the European Union, 2016. Gorka Salaberria Sorondo v Academia Vasca de Policía y Emergencias. Press Release No 125/16.
- Crown, 2010. Equality Act 2010. Chapter 15.
- Crown, No Date. Equality Act 2010. Discrimination.
- Employment Cases Update, 2017. Harrod & Ors v Chief Constable of West Midlands Police & Ors  EWCA Civ 191. Bath Publishing.
- Galdon-Sanchez, J. E. & Güell, M., 2003. Dismissal Conflicts and Unemployment. European Economic Review, Vol. 47, No. 2, pp. 323-335.
- Kang, J. & Banaji, M. R., 2006. Fair Measures: A Behavioral Realist Revision of “Affirmative Action”. California Law Review, Vol. 94, No. 4, pp. 1063-1118.
- Lippert-Rasmussen, K., 2017. The Routledge Handbook of the Ethics of Discrimination. Routledge.
- Menzies Law, 2017.a. Case Update (3): Disability Discrimination – Reasonable Adjustments. Case Update.
- Menzies Law, 2017.b. Case Update (1): Disability Discrimination – Unfavourable Advantageous Treatment. Case Update.
- NiDirect, No Date. Fair Reasons for Dismissal. Dismissal.
- SAFLII, 2002. Rubenstrein v Price’s Daelite (Pty) Ltd (J945/01)  ZALC 28; (2002) 23 ILJ 528 (LC) (14 March 2002). Databases.
- Thompson, D. M. O., 2010. Unfair Discrimination and Dismissal Based on Age. Nelson Mandela Metropolitan University, pp. 1-48.