The equal opportunities act 2008 law employment essay

Following its independence and the adoption of its supreme law, the Constitution in 1968, Mauritius has always worked on the promotion of human rights be it civil, political, social, economic or cultural rights and its respect in the country. The solid proof lies in the enshrinement of the protection of fundamental rights and freedoms of the individual in the Chapter II of the Constitution which constitutes of the protection of fundamental rights and freedoms of the individual[1]such as the protection of right to life[2], the protection of right to personal liberty[3], the protection of slavery and forced labour[4], the protection from inhuman treatment[5], the protection from deprivation of property[6], protection for privacy of home and other property[7], provisions to secure protection of law[8], protection of freedom of conscience[9], protection of freedom of expression[10], protection of freedom of assembly and association[11], protection of freedom to establish schools[12], protection of freedom of movement[13]and protection from discrimination[14]. Conscious of the sheer importance of section 16 of the Constitution which relates to protection from discrimination, the parliament of Mauritius has in 2008 promulgated The Equal Opportunities Act 2008, a secondary legislation which comes to consolidate the self contained provision of section 16 of the Constitution and back it up with additional grounds on which discrimination can occur, for example, sexual orientation of a person or his marital status. The EOA has repealed Sections 16 and 18(1) (b) of the Training and Employment of the Disabled Persons Act 1996 and the Sex Discrimination Act 2002 each of which only catered for only one form of discrimination[15]. Before promulgation of the EOA, when the Parliament referred to it as the Equal Opportunities Bill , in its explanatory memorandum, its object was described as ” to ensure that every person has an equal opportunity to attain his or her objectives in various spheres of activities and that no person is placed or finds himself at a disadvantage by reason of his status, namely his age, caste, colour, creed, ethnic origin, impairment, marital status, place of origin, political opinion, race, sex or sexual orientation. The Bill accordingly prohibits any form of discrimination in a direct or indirect manner on the grounds of status. Additionally it prohibits any form of discrimination by victimisation. These prohibitions from discrimination shall apply to employment activities, education, provision of goods, services or facilities, accommodation, disposal of immoveable property, companies , partnerships, societies or registered associations-clubs, access to premises and sports.”[16]The EOA is an important piece of legislation for social justice as ” of course persons should be uniformly treated, unless there is some valid reason to treat them differently”[17]. As a formulation of the principle of equality, as per Justice Rault J. in Police v. Rose [1976 MR 81]:-” Equality before the law requires that persons should be uniformly treated, unless there issome valid reason to treat them differently.” It shall be further seen that the EOA provides for minute exceptions where people may be treated differently. A just definition of the term discrimination (the corollary of the EOA), as set in Section 16 of the Constitution will be very helpful in this question’s analysis. Does discrimination occur when CPE students are awarded star schools on the basis of their results as per the current educational system of our country[18]or when laureates are awarded lavish scholarships upon pursuance of their higher studies? In the case of Matadeen v. Pointu 1997 PRV 14 / 1998 MR 172, in which redress was accordingly sought on the ground of discrimination regarding to CPE exams, it was held that ” ” discriminatory” is defined in section 16(3) to mean the affording of different treatment to different persons ” attributable wholly or mainly to their respective descriptions by race, caste, place of origin, political opinions, colour, creed or sex” “. Also, does discrimination occur when general election candidates are required to include their religion in their nomination paper failing which the latter would be rendered null and void?[19]The EOA, under its section 5 caters for direct discrimination where a person (the discriminator) discriminates against another person (the aggrieved) on the ground of the status of the person by providing a less favourable treatment than would be expected from him. Section 6 of the EOA on the other hand caters for indirect discrimination where a discriminator discriminates indirectly against the aggrieved person on the grounds of his status where he imposes or tries to impose a condition which would likely result to be disadvantaging on the aggrieved person when compared to other persons of the same status. Its section 7 caters for discrimination by victimisation whereby the discriminator discriminates by victimisation against the aggrieved party or treats him less favourably on several grounds. The EOA therefore provides protection under these three types of discrimination and presumably gives an exhaustive list of situations under these three types of discrimination.[20]Discrimination in employment matters is provided by Part III of the EOA. Employment is one of the many sectors where discrimination has been rampant throughout the years. The EOA requires every employer to comply with the codes and guidelines prepared by the Commission[21]set up under the EOA and to minimize the risk of an employee being discriminated the employer should apply an equal opportunity policy at his place of work and should promote recruitment training and selection and employment on the basis of merit as set out by section 9 subsection 1 of the EOA. Section 9 subsection 2 further adds that the employer should take necessary measures to ensure favourable working conditions both for men and women in the view of promoting equality amongst his employees and this should be in line with the employer’s resources and circumstances in general. Furthermore, the Act goes further in its fight against discrimination of any type by providing in its section 10 no employer or prospective employer should discriminate in any job advertisement, in the arrangement he makes for the purpose of determining who should be offered the job, the terms and conditions on which the employment is offered or by refusing or deliberately omitting to offer employment to that person. The EOA vividly promotes meritocracy, but it may turn out to be a problem if say 10 people are to be recruited, and all the ten best are men or all the ten best are people belonging to the hindu community. Then how do we evaluate this situation? Discrimination on the basis of religious views and meritocracy may act as the opposite poles of two horseshoe magnets in this situation yet they collide and raise ambiguosity pertaining to recruitment of people belonging to the same religious community and being utterly eligible on the basis of their meritocracy at the same time. Also the EOA provides that no discrimination should be afforded with regard to the conditions of employment, the conditions of work or occupational safety and health measures, termination of the employment of the employee or by placing the employee at a disadvantage in any other manner.[22]The Act also caters for people undergoing training not to be discriminated concerning the terms or conditions of the training and the termination of training by the employer as set out by its section 12. However the EOA sets out a limitative set of situations where the employer may discriminate on the basis of age, sex, religion, political status or the impairment of the prospective employee.[23]Such matters may arise where being of a particular sex is a primary requirement of the employment or the duties relating to the employment may require ” specific physical characteristic, other than strength or stamina that are possessed only by persons of that sex”. It may also be with regard to the place of work of the prospective employee or the nature of the establishment where the work is carried requires a person of that particular sex etc. Also, concerning employment cases a person may be discriminated on the basis of his or her impairment due to which the person will be unable to carry out his functions correctly or he would suffer hardship or he would be at risk because of the nature of the work. An employer may also discriminate on the grounds of age where age is a specific criterion of the employment. What is more astonishing is where the EOA allows for discrimination on the basis of political status on in the offering of employment to another person as a ministerial adviser, member of staff of a political party or member of the electorate staff of any person or any similar employment. The EOA also provides that an educational institution may discriminate against a person on the basis of impairment where the person cannot participate in the educational programme. The legislation is full of paradoxes. Could this mean that nobody else apart from the political agents would be recruited as ministerial advisers? Exhaustive limitations provided under the EOA would most possibly help in dissecting the intentions of the politicians who were in power at the time of its promulgation. It is a matter of bitter truth that the ratio of women to men who are politically active is very low. Women are also marginalized concerning high-level jobs and at the level of trade-unions. Neither the Equal Opportunity Act nor the Constitution provides for the catering of the parliamentary representation of women who constitute more than half the population of the working age. In its report on governance statistics for the year 2010, the Central Statistics Office indicates that the proportion of seats held by women in the Parliament in Mauritius currently stands at 18. 8[24]per cent, compared to 17. 1 per cent in 2005 and 6. 1 per cent in 2000. There has been an increase in the proportion of female candidates at the National Assembly elections from 6. 5 per cent in 2000 to 16. 1 per cent in 2010. Based on figures published by the Inter-Parliamentary Union, Mauritius is at par with France regarding female representation in Parliament. The report also highlights that in Mauritius, there exists no gender disparity in education. However, the gender gap in the labour market and in politics is yet to be bridged. The EOA has established under its wings the Equal Opportunities Commission under its Part VI and the Equal Opportunities Tribunal under its Part VII to enforce its provisions. The Equal Opportunities Commission, hereafter referred to as the EOC which will be a body corporate[25], will function according to the provisions set out by section 27 of the EOA. The chairing of the Equal Opportunities Tribunal, hereafter referred to as the EOT, is set out by section 34 of the EOA and its jurisdiction by section 35 of the EOA. As laid down by section 27 of the EOA, the EOC should consist of a Chairperson and three other persons. The Chairperson should fit any of these criteria: he should have been a judge or a magistrate of not less than 10 years’ practice or a law practitioner of not less than ten years or a Magistrate and a law practitioner for an aggregate period of not less than 10 years. This requirement is very indicative in the sense that such people would know how to construe the relevant sections provided by the EOA in its effort to fight against discrimination and the provisions of the EOA would be well interpreted by people in the law practice rather than a lay person. Also one of the members shall be a person who has been a law practitioner for not less than 5 years. The other members shall be persons having knowledge and experience in the field of law, employment, industrial relations, sociology or administration. This also accounts for the understanding of the law provisions of the EOA. The chairperson of the EOC has just very recently appointed on the 13th of April 2012 who is Me. Brian Glover[26]. As set out by the words of the article on the Defi Media Group website:” C’est Me Brian Glover qui présidera l’Equal Opportunities Commission. Le choix de nommer cet avocat à la tête de cette commission a été avalisée ce vendredi 13 par le Conseil des ministres. La mise sur pied de cette commission est une des étapes avant la mise en application de l’Equal Opportunity Act, censée assurer des chances égales à tous et la transparence et la méritocratie dans le recrutement que ce soit dans la Fonction publique ou le secteur privé.” And quoting Me Brian Glover’s words:« Je souhaite que la commission se réunisse au plus vite afin de s’assurer que chaque citoyen obtienne un ‘ fair go’. Cette première session de travail devra nous permettre de dégager une structure et un organigramme afin qu’une commission de cette envergure puisse voir le jour dans les plus brefs délais ». The duty of the EOC, as set out by section 27 subsection 3 is to do all that is within its means to eliminate discrimination and promote equality and good relations between persons of different status. Where it is in its view that the law shall be amended, it should refer the matter to the Attorney General. This makes the EOA flexible to such an extent that it can be amended upon request of the Commission which is in fact a good thing since laws should be changed to fit the requirements of an evolving society. The EOC, being an independent and autonomous entity, will consider all the complaints lodged by people who allege having their rights under the EOA breached, conduct investigations[27]and require disclosure of information from any employer. It should attempt to resolve the matter by conciliation[28]. This helps to reduce the pressure on the judiciary to resolve disputes. But upon failure of any conciliation between the parties, the EOC should refer it to the EOT.[29]The EOT, as set out by section 34 of the EOA, ” shall consist of a President who shall be a law practitioner of not less than 10 years’ standing 2 other persons having knowledge of or experience in law, race relations, gender affairs, employment issues, education, culture, economics, social welfare or human rights and who have been active in any of those fields fora period of not less than 5 years or in a combination of those fields for an aggregate of not less than 5 years” appointed by the Public Service Commission. The Tribunal will have jurisdiction[30]to hear and determine complaints referred to it by the Commission. Concerning urgent matters it may issue an interim injunction in order to prevent serious and irreparable damage or for the protection of public interest or to prevent ” a person from taking any step that would hinder or impede a hearing before the Tribunal”. It may to issue such directives as it considers necessary to ensure compliance with the EOA. It also has the jurisdiction to do what is in within its means to reconcile the parties. Decisions of the Tribunal may be appealed to the Supreme Court[31]. The mechanisms provided under the EOA ensure its compliance and any derogation of its provisions render the parties concerned liable for breach of its provisions. The EOA is new legislation adopted just recently. Also the Tribunal hasn’t yet sat for proceedings and does not have an enriched jurisprudence and collection of judgments rendered. It is also a matter of much speculation that the Public Service Commission which is a body established by the Constitution, the supreme law of the country, and being independent, shall be answerable to Court of law where the personnel is itself appointed by the PSC? Following the issue paper 2008 of the LRC on the Equal Opportunities Bill, it has been commented that ” the structure of the anti-discrimination provision does not reflect best international practices in the field. The anti-discrimination provision is self-contained [discrimination is prohibited on specified grounds, as is the case in sections 3 and 16 of the Constitution], whereas our international obligation under articles 2 and 26 ICCPR [International Covenant on Civil and Political Rights] requires of us that we enact an open-ended provision [whereby discrimination is prohibited on the basis of an indeterminate number of grounds, the grounds mentioned being merely instances of discrimination].”[32]The related category targeted by the EOA, that is, women and members of minority groups will need to see and test whether the government lives up to its promises or not.(Number of words excluding footnotes: 2501)