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UK EQUALITY ACT VS. SERBIAN LAW ON PROHIBITION OF DISCRIMINATION

Faculty of Law Master of European Integration. UK EQUALITY ACT VS. SERBIAN LAW ON PROHIBITION OF DISCRIMINATION. Students: Mentors:

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UK EQUALITY ACT VS. SERBIAN LAW ON PROHIBITION OF DISCRIMINATION

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  1. Faculty of Law Master of European Integration UK EQUALITY ACT VS.SERBIAN LAW ON PROHIBITION OF DISCRIMINATION Students: Mentors: Petar Markovic Prof. Lidija Basta Fleiner Ana Trbojevic Prof.Thomas Fleiner

  2. Equality Act2010 • The Equality Act 2010  is an Act of Parliament of the United Kingdom, and fulfils a manifesto commitment of the Labour Party in the 2005 General election. • The primary purpose of the Act is to consolidate the complicated and numerous array of Acts and Regulations, which formed the basis ofanti-discrimination law in Great Britain. This was, primarily, the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 and three major statutory instruments protecting discrimination in employment on grounds of religion or belief, sexual orientation and age.

  3. Equality Act • The Equality Act 2010 replaced the existing anti-discrimination laws with a single Act. It included a new public sector Equality Duty, replacing the separate public sector equality duties relating to race, disability and sex, and also covering age, sexual orientation, religion or belief, pregnancy and maternity, and gender reassignment more fully.The Equality Duty consists of a general duty, set out in the Act itself, and specific duties imposed through regulations. • The General Equality Duty • The general duty is set out in section 149 of the Act (reproduced at Annex 1). In summary, those subject to the Equality Duty must have due regard to the need to: • eliminate unlawful discrimination, harassment and victimisation; • advance equality of opportunity between different groups; and • foster good relations between different groups.

  4. Purpose of the act • Strengthening, harmonizing, and streamlining 40 years of equality legislation • Strengthening: improving the effectiveness of equality legislation • Harmonizing: same level of protection across all protected grounds and sectors • Streamlining: simplifying and consolidating approximately 116 pieces of separate equality legislation

  5. Protected Characteristics • Age • Disability • Gender reassignment • Marriage and civil partnership • Pregnancy and maternity • Race religion and belief • Sex • Sexual orientation

  6. Prohibited Conduct • Direct discrimination (+ perception and by association) • Indirect discrimination • Combined discrimination(vs.severe forms) • Harassment • Victimization

  7. Scope of application • Services and Public Functions • Premises • Work • Education • Associations (+ Political Parties)

  8. Respect, Protect and PROMOTE • Public Sector Equality Duty • “To have due regard to the need to: • Eliminate discrimination, harassment and victimization • Advance Equality of Opportunity • Foster good relations”

  9. SERBIA • Law on prohibition of discrimination 2009-the foundation of every democratic society • Politics, conditionality, obstructions- 8 years long journey • Art.1 (1) “This Law shall regulate the general prohibition of discrimination, the forms and cases of discrimination, as well as the methods of protection against discrimination.”

  10. LEGAL BASIS • Art. 21 CRS- equality before law; general prohibition of discrimination- both direct and indirect on many grounds • Prohibition of discrimination proclaimed- Art. 14 of ECHR + Protocol 12 2005- and by doing so Serbia is obliged to prohibit discrimination in relation to enjoyment of any right set forth in national legislation • ECRI and EC report 2007 : Framework law required – all-embracing approach • EU- Lisbon Treaty- Art. 13……..” The Union shall combat social exclusion and discrimination and promote social justice and protection, equality between man and women, inetr-generational solidarity and protection of chlildren rights

  11. “PROTECTED GROUNDS” Forms of discriminations- analysis- special cases of discrimination with regard to : 1.) causitive agents 2.) protected grounds leading to unjustified difference in treatment and omission to act ( trough acting and failing to act )

  12. 1. Discrimination in the course of proceedings conducted before public administration organs 2. 2. Discrimination in the sphere of labour 3. Discrimination in the provision of public services and in the use of premises and spaces 4. Discrimination in the sphere of education and professional training Discrimination on the grounds of: Gender Sexual Orientation Political party or trade union membership Age (1,2) Health Disability Religion and Belief Race, ethnicity, color and membership of national minority “protected grounds”

  13. Discrimination of disabled persons Article 26 Discrimination shall be considered to occur in the case of conduct contrary to the principle of observing the equal rights and freedoms of disabled persons in political, economic, cultural and other aspects of public, professional, private and family life. The manner of realising and protecting the rights of disabled persons shall be regulated by a special law. As regards the judicial protection of disabled persons from discrimination, Articles 41, 42, 43, 44, 45 and 46 of this Law shall also apply. )A person (P) has a disability if— (a)P has a physical or mental impairment, and (b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2)A reference to a disabled person is a reference to a person who has a disability. (3)In relation to the protected characteristic of disability— (a)a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b)a reference to persons who share a protected characteristic is a reference to persons who have the same disability. (4)This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a)a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b)a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. e.g.I Disability

  14. example Invalid Negoslav Tomić, usled invalidnosti nije u mogućnosti da podnese pismeni zahtev jednom državnom organu. Pošto nema zakonskog zastupnika, neposredno se uputio u taj državni organ kako bi zahtev podneo usmeno, jer se njegova invalidnost ne odnosi na mogućnost kretanja. Ovlašćeno lice organa javne vlasti poziva se na zakonsku odredbu prema kojoj zahtev ne može da bude upućen usmenim putem i odbija da mu Tomić podnese usmeni zahtev.

  15. e.g. II LGBT • SERBIA: -Discrimination on the grounds of sexual orientation • Article 21 • Sexual orientation shall be a private matter, and no one may be called to publicly declare his/her sexual orientation. • Everyone shall have the right to declare his/her sexual orientation, and discriminatory treatment on account of such a declaration shall be forbidden • UK- introduces a gender reassignment as well as a civil partnership : • Marriage and civil partnership • (1)A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner. • (2)In relation to the protected characteristic of marriage and civil partnership— • (a)a reference to a person who has a particular protected characteristic is a reference to a person who is married or is a civil partner; • (b)a reference to persons who share a protected characteristic is a reference to persons who are married or are civil partners.

  16. LGBT • Gender reassignment • (1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. • (2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment. • (3)In relation to the protected characteristic of gender reassignment— • (a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person; • (b)a reference to persons who share a protected characteristic is a reference to transsexual persons.

  17. e.g. III Religion and Belief • Defences of less favourable treatment under EU non-discrimination law vs. religious discrimination • UK: • “Genuine Occupational Requirement” and the Amicus case “less favourable treatment is a proportionate means of achieving a legitimate aim” • Serbia: • The prohibition of religious discrimination • Article 18 • Discrimination shall be considered to occur in the case of conduct contrary to the principle of free expression of faith or beliefs or if an individual or a group of persons is denied the right to acquire, maintain, express and change faith or beliefs, or the right to express, be it privately or publicly, or act in accordance with his/her beliefs. • The conduct of priests, that is to say, religious officials, which is in keeping with a religious doctrine, beliefs or the objectives of churches and religious communities entered in the register of religious communities, in accordance with the law regulating the freedom of religion and the status of churches and religious communities, shall not be considered to constitute discrimination.

  18. Patterns of inclusion • GED: Foster good relations • Serbia: University of Belgrade case study

  19. e.g. IV National Minorities • EA Art. 9: Race Race includes • (a)colour; • (b)nationality; • (c)ethnic or national origins. • LPD Art. 24: Discrimination against national minorities “It is forbidden to discriminate against national minorities and their members on the grounds of religious affiliation, ethnic origin, religious beliefs and language.”

  20. ROMA • GED: Advance Equality of Opportunity i.e. “catch up classes” • Serbia: special schools

  21. Commonalities and Differences • Commonalities: 1.Status Quo Ante 2.Equality and Non-Discrimination Commissioner (Equality Act 2006, LPD Art. 28 - 41) 3. Timelines 4. Definitions of discrimination

  22. Discrimination • Direct discrimination • Article 6 • Direct discrimination shall occur if an individual or a group of persons, on the grounds of his/her or their personal characteristics, in the same or a similar situation, are placed or have been placed or might be placed in a less favorable position through any act, action or omission. • Indirect discrimination • Article 7 • Indirect discrimination shall occur if an individual or a group of individuals, on account of his/her or their personal characteristics, is placed in a less favorable position through an act, action or omission that is apparently based on the principle of equality and prohibition of discrimination, unless it is justified by a lawful objective and the means of achieving that objective are appropriate and necessary.

  23. Serbia progress Report- 2009 • The Law on Prohibition of Discrimination was adopted in March 2009. This law marks a • step forward in protection of human rights. It provides for appointment of an independent • commissioner for the protection of equality. Court protection is also envisaged. The • commissioner will deal with all cases of discrimination, except those already processed in • court. The commissioner is expected to be operational from January 2010 on. • In practice, • there is ongoing discrimination, in particular against vulnerable groups such as Roma, persons • with disabilities, and the LGBT population. All these groups are frequently victims of • intolerance and hate speech. There is little support for victims of discrimination and there is a • need for greater commitment on the part of all involved – the police, the prosecution service • and the judiciary – to make sure that the legislation is fully enforced

  24. Serbia progress Report 2010 The legislative framework prohibiting any kind of discrimination and establishing a mechanism for protection against discrimination is in place. The equality protection commissioner mandated to ensure full implementation of the law on the prohibition of discrimination was elected by parliament in May 2010 but is not fully operational yet. In practice, discrimination continues, particularly against the Roma, the LGBT community, women, national minorities, and persons with disabilities. These groups, but also human rights defenders and journalists, are exposed to hate speech and threats that are rarely followed up by the authorities.

  25. THANK YOU!!! THANK YOU!!!

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