Expression And Freedom Of Association Law Employment Essay

Published Date: 02 Nov 2017

INTRODUCTION

Labour law blossomed from the consideration of the workers’/employees’ call for better work conditions on the workplace and eventually for a better communication with their respective employers. The foundation floor of most labour legislations in Mauritius has always taken as its cross reference material basic human rights concepts because at the heart of each and every labour legislation drafted should lie an utter respect for the human being which resides in each and every worker/employee. Through the adoption of the fundamental rights and freedom in its Chapter II, the Mauritian Constitution has made clear-cut that this democratic country is a State in which non-respect of human rights would not be tolerated.

With the recent adoption of the Employment Rights Act [1] (Act 33/2008), the Employment Relations Act [2] (Act 32/2008) and the Equal Opportunities Act [3] (Act 42/2008), it can be deduced how the Mauritian legislator has repartitioned and adapted the fundamental human rights in the labour context to make sure that both workers and employees enjoy a favourable working environment which has been confectioned in such a way so that no basic human right is curtailed.

In addition to Mauritian case law, British, Indian, Australian, South African and American cases have been cited to provide for a global understanding of the protection of human rights of the worker/employee in the workplace. The jurisprudence of the European Court of Human Rights has also been extensively used to provide an aperçu of the protection of the fundamental rights and freedoms of the worker/employee on his workplace on the international plan.

The structure of this dissertation is as follows : While considering a human rights approach towards labour law in Mauritius, Chapter 1 of this dissertation aims at critically explaining the right to freedom of expression and freedom of association guaranteed to the employee/worker and to what extent that right is limited. Chapter 2 will give an aperture towards slavery, forced labour and ill treatment, and how such attitude by employers is prevented by various provisions of the law. Chapter 3 will provide a sneak peek through discrimination, and the newly adopted legislative framework, the Equal Opportunities’ Act 2008, which specialises in discrimination at work and finally Chapter 4 will lay much emphasis on the right to a fair trial being extrapolated to labour law as procedural fairness in pre-dismissal cases. A conclusion and bibliography will close this dissertation.

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CHAPTER 1: FREEDOM OF EXPRESSION AND FREEDOM OF ASSOCIATION ON THE WORKPLACE

In order to get a good grasp of this chapter, it is important to understand, firstly, the freedom of expression on the workplace in Mauritius (1.1) and secondly, the freedom of association on the workplace in Mauritius (1.2).

1.1 Freedom of expression on the workplace.

Definition of freedom of expression

Freedom of expression, one of the fundamental human rights as provided by section 12 [4] of the Constitution, has been "inspired" from Article 10 [5] of the ECHR and Article 19 of the ICCPR as it was held in the cases of Dookhony v La Sentinelle Ltd [6] and London Satellite Systems Ltd v State of Mauritius [7] . Section 12 (1) of the Constitution provides that:

"Except with his own consent, no person shall be hindered in the enjoyment of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence."

It was held in the case of Fuentes Bobo v Spain [8] that the application of Article 10 [9] of the ECHR extends to all employer-employee relationships and includes those categorized under public law as well as private law. Basically it goes without saying that a worker/employee [10] enjoys his right to freedom of expression on his/her place of work and his/her employer cannot tamper with it by restricting him/her to hold opinions and interfere with him/her imparting ideas and information. It is a constitutional right conferred to him/her and it should not be tampered with by the adoption of strict rules and regulations putting barriers to his/her right to freedom of expression.

1.1.2 Freedom of Expression, a non-absolute right, subject to limitations.

The drafters of the Constitution have taken ample consideration of the two competing interests and concerning the right to freedom of expression on the workplace, it is that of the employer and that of the worker/employee. A balance must be struck between the rights of both parties of competing interests.

Section 12 (2)(a) [11] and 12(2)(b) [12] of the Constitution further limit the freedom of expression of the worker/employee in the sense that it is a non absolute right and it should be enjoyed in relation to the respect of the rights of others. This is confirmed in the cases of DPP v Boodhoo [13] , Duval v Commissioner of Police [14] , Cehl Meeah v Commissioner of Police [15] , Armoogum v La Sentinelle Ltée [16] and Police v Murday [17] . In the employment field, the right to freedom of expression becomes limited concerning misconduct on the part of the employee and the law of breach of confidence.

1.1.2.1 Misconduct on the part of the employee

A misconduct is a willful act performed by the worker/employee behind which there is a wrong intention which hinders the maintenance of the worker’s/employee’s contract of employment. The cases of O’Connor v Palmer and Others [18] , Pillai v Messiter  [19] and De Leon v Spice Temple Pty Ltd [20] all confirm that to qualify as a misconduct, the act of the employee/worker must be accompanied with a wrong intention.

Not all and every misconduct would justify a dismissal and each case should be decided on its own merits as it was held in the case of Chan Man Sing G v Wing Tai Chong Company Limited [21] . While considering the approach of jurisprudence considering misconduct rooted from misuse of the right to freedom of expression on behalf of the worker/employee, both local and international, case law considers that an attempt to dirty the reputation of the enterprise as well as the employer constitutes gross misconduct and hence a justified dismissal. Also such an attempt constitutes a transgression of the limits of the non-absolute freedom of expression right as clearly demonstrated in the case of Societé de Beau Vallon v Nilkomol [22] .

The same reasoning has been highlighted in the cases of Predota v Austria [23] and Rodica Cârstea and Veronica Grecu v Romania [24] where the ECtHR held that an attempt to tarnish the reputation of the employer by openly criticizing him goes against the concept of exercising one’s right to freedom of expression in relation to the rights of others. One cannot invoke his right to freedom of expression where he/she openly makes critics about his/her employer because it clashes with the employer’s right to reputation, which draws the limit line of the employee’s right to freedom of expression on the workplace.

1.1.2.2 The law of breach of confidence, as a restrictive aspect of freedom of expression at work.

Among the limitations to the right to freedom of expression posed by Section 12(2)(b) [25] of the Constitution is the disclosure of information received in confidence.

Justice P.Balgobin held, in the case of Eau Soleil Compagnie Limitée v Cernol Services Limited [26] , that the law of breach of confidence being of English inspiration and falling in the domain of equity, English case law is useful as an interpretative tool. In the case of Seagar v Copydex [27] the law of breach of confidence is explained as follows:

"It depends upon the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent."

Lord Denning stressed on the right to free speech in the case of Fraser v Evans [28] and continued in his judgment by saying that if information is provided to an employee imparting an obligation of confidence with it, then the employee should not divulge such information to the detriment of his employer albeit that he has a right to free speech. It is implied that the law of breach of confidence draws the limit-line for an employee/worker who enjoys his right of freedom of speech either during his employment or afterwards as it was held in the cases of Alperton Rubber Co. v. Manning [29] and Amber Size & Chemical Co. Ltd v Menzel [30] .

Whether the obligation of confidence can either be in express or implied terms has been fully discussed by the English Court in the case of Saltman Engineering v Campbell Engineering [31] and the English Court affirmed that it may be both in express and implied terms.

The law of breach of confidence certainly limits a worker’s/employee’s or an ex-worker’s/ ex-employee’s right to freedom of expression but it gives an impression that the worker/employee may not use what he has acquired as what he has experienced during his period of service. This problem has been solved by the formula provided in the case of FSS Travel and Leisure Systems Ltd v Johnson [32] where it was held that if the information in question constitutes of a separate stock of knowledge of the employer, then there is a duty on the worker/employee not to divulge this information to anyone else.

In the case of Mohun v Ilma Co. Ltd [33] , the Supreme Court held that an ex-employee may be prevented from soliciting his ex-employer’s customers by memorizing their contact details but the court considered that the issue of confidentiality depends on particular circumstances of each case as it was held in the case of Baker v Gibbons [34] . The case of Mohun v Ilma can be contrasted with the case of Robb v Green [35] where it was held that the employee who has bona fide accidentally learned contact details the customers of his employer and makes use of it afterwards does not taint the obligation of confidence derived from the master-servant relationship. In the case of WSP v Sungker K [36] , the Supreme Court held that where the ex-employer wanted to prevent the information gathered by his ex-employee as lead engineer on a project for auditing purposes, that information gathered by the defendant was not a confidential information per se.

In the case of Air Mauritius Limited v A. Thomas [37] , the ruling was based on the case of Bents Brewery Co. Ltd v L. Hogan [38] where it was held that terms and conditions of an employee’s/worker’s employment do not fall under the confidential information umbrella.

An analysis of the various case law draws the conclusion that inasmuch as an employee/worker enjoys freedom of expression, the law of breach of confidence limits his freedom of expression by preventing him to impart ideas and information which he has received in confidence from his employer. And this obligation of confidence is maintained even if the master-servant relationship ceases to exist between the two parties when the contract of work is severed between them. The condition being that the owner of the information perceives it as being secret and it is not in the public domain as it was held inthe cases of Crain Limited v Ashton [39] , Integral Systems Inc. v Peoplesoft Inc [40] , Delrina Corp. v Triolet Systems Inc. [41] and Mustad & Son v S. Allcock [42] .

1.2 Freedom of association on the workplace.

1.2.1 Freedom of assembly and association

The right to form, join and belong to associations is enshrined in section 13 of the Constitution which reads as follows:

"Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and, in particular, to form or to belong to trade unions or other associations for the protection of his interests."

Section 13 of the Constitution is inspired in similar terms as Article 22 of the ICCPR, Article 8 of the ICESCR and Article 11 [43] of the ECHR. The right to freely associate is inherent to the worker/employee as a human being and he can freely be a member of a trade union for the protection of his interests (which should be the backbone of joining trade unions) and a failure to do so fuels his vulnerability and provides an abusive gateway in respect of his fundamental rights and principles at work. [44] 

Sections 32 and 33 of the ERelA [45] further elaborate on the collective voice of workers/employees at work. In the case of National Union of Belgian Police v Belgium [46] , the ECtHR held that the right to freedom of association moulds both the right to form and join the trade union of one’s choice and the right to be heard and have his/her rights protected. It was highlighted in the case of Schmidt and Dahlström v Sweden [47] that the right to freedom of assembly of workers/employers does not provide "security of any particular treatment" by the State, such as "the right to retroactivity of benefits, for instance salary increases, resulting from a new collective agreement".

The same reasoning can be found in the case of Gustafson v Sweden [48] where it was held that each State should be free to legislate on trade unions and to allow trade unions fulfill their objects From this stems the fact that there will be no violation of the right to freedom of association whereby there has been any particular means by which trade unions could make sure that the rights of their members are being catered for. In light of this criticism, it was held in the leading case of Wilson and Palmer v UK [49] that:

"In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and the wide degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom may be secured."

1.2.2 Trade unions

Section 2 of the ERelA defines a trade union as an association of people having as one of its purposes the promotion of industrial relations. It does not matter if it is registered or not as long as it is lubricating the relationship between workers and employers. It is to note that the ERelA uses the term "worker" and not "employee", so basically whether the employee falls under this section is rather doubtful.

Section 29 of the ERelA 2008 explicitly provides for the right of a worker/employee to enjoy his right to freedom of association and assembly by "joining or establishing a trade union of his own choice". It is to be noted that for a worker/employee to be able to join a trade union in Mauritius, the latter must be a registered body corporate [50] as it was held in the case of Sullivan v Union of Artisans of the Sugar Industry [51] . By contrast in the case of Transport & Industrial Workers' Union v Fernandes [52] and Bonsor v Musicians' Union [53] it was held that the law of other jurisdictions allow unregistered trade unions to be recognized lawfully.

The sole membership of a worker/employee to a trade union does not per se guarantee him an automatic freedom of association on his workplace, the trade union must be recognized [54] within the enterprise. It was held in the cases of National Union Of Gold, Silver And Allied Trades v Albury Brothers Ltd [55] , Transport and General Workers' Union v Andrew Dyer [56] and National Union of Tailors & Garment Workers v Charles Ingram & Co Ltd [57] that recognition is a two-way process, that is, the employer should acknowledge the trade union and its purpose and the trade union should take due cognizance of the acceptance of the employer of its purpose. The acceptance needs not necessarily be express; it might as well be tacit as it was held in the cases of Union of Shop, Distributive and Allied Workers v Sketchley Ltd [58] and National Union of Mineworkers and RJB Mining (UK) Ltd [59] . The percentage of worker/employee members of a trade union should not be dependent upon its recognition as it was held in the case of Happy World Marketing v Industrial Relations Commision & Anor [60] .

The fact that trade unions are independent entities and should draw up their own rules and regulations concerning their membership [61] is a consequence of the right to freely associate as it was highlighted in the case of ASLEF v UK [62] . The right to freedom of association is of a reciprocal nature, meaning that it may only be exercised in relation to others’ willingness to associate. In the case of Cheall v United Kingdom [63] it was concluded that trade unions may refuse membership or even expel an existing member on strong grounds. The right to freely associate at work henceforth branches and is subdued to the autonomy of trade unions.

1.2.2.1 Trade unions and protection from discrimination

Section 31 of the ERelA [64] , which is entitled "protection against discrimination and victimization", provides that a worker/employee should not be discriminated on the basis of his membership or activities within a trade union. This was confirmed in the cases of Speciality Care Plc v Pachela & Anor [65] , Mayan King Limited v Reyes and ors [66] and Discount Tobacco and Confectionery Ltd v Armitage [67] . However, it was held in the case of City of Birmingham Corp. v. Beyer [68] that the famous trade union activist was not sacked one-hour after being employed on cognizance of his membership but due to the falsification of his name.

In the case of Jayekurrun v LIC [69] where the plaintiff averred that the ground of his dismissal was due to his union activities, the Supreme Court considered the welcoming attitude of the employer of the trade union activities of his workers/employees and dismissed the plaint. It stems from case law that an employer or a prospective employer should not discriminate a worker/employee or a prospective employee due to his/her engagement in trade union activities which ensures an undisturbed or unhampered enjoyment of freedom of association on the workplace.

1.2.2.2 The bargaining process.

Section 35 [70] of the ERelA provides for the promotion of good employment relations to make the employee/worker-employer relationship fluid as it was held in the case of State Bank of Mauritius v Jagessur [71] .

Collective bargaining involves the acceptance of both the workers/employee and the employer on matters such as work conditions and wages or salaries. However as it was held in the case of Federation of Civil Service v State of Mauritius [72] which quoted the precedent case of Collymore v AG Trinidad and Tobago [73] , the raison-d’être of a trade union is to engage in collective bargaining with the employer on its members but the right to collective bargaining flows from the right of freedom of associated but both cannot be equated as being the two sides of the same coin. This de facto means that from the right to freedom of association stems the right to collective bargaining but as it was held in the case of Associated Newspapers v Wilson, it is commonplace for a union not to provide collective bargaining facilities to its members. This does not imply that being a member of such a union is of no value.

While aptly construing the words "in principle" in the case of Demir v Turkey [74] , the ECtHR shrewdly evaded the question of a union not providing bargaining facilities to its members. The crux of the matter is whether the trade union is protecting the interests of its members using any lawful means available to it.

The right to strike is provided to by section 6 [75] of the ERelA. Section 2 [76] of the ERelA defines a strike as "an action taken by a group of workers to stop their work or to go slow on their work with an intention to inhibit the ongoing process of production". The interpretation section of the ERelA relating to strikes does not at any place mention "employee". In order to cope with this lacuna, Lord Denning’s words in the case of Tram Shipping Corporation v Greenwich Marine Incorporation [77] can be quoted:

"A strike is a concerted stoppage of work by men, done with a view to improving their wages or conditions of employment, or giving vent to a grievance or making a protest about something or sympathising with other workmen in such endeavor."

The right to strike is definitely the last resort available to workers/employees when negotiations prove futile or end in a deadlock as it was it was held in the case of Clarrise v Dry Cleaning [78] . The cases of Federation of Offshore Workers’ Trade Unions and Others v Norway [79] and Unison v UK [80] clearly demonstrate that restrictions posed on the right to strike involves a direct infringement of the right to freedom of association.

1.2.2.3 The "closed-shop" agreement

The right to freedom of association embodies both a positive and a negative right, that is, a right to associate and a right not to associate. A "closed-shop" agreement is an agreement between an employer and a trade union association consisting of accepting to employ people only if they are members of that particular trade union. This being incompatible with the right to not associate is prevented by section 34 [81] of the ERelA which states that any closed shop agreement between an employer and a trade union is to be considered void. The cases of Young, James and Webster v UK [82] . And ,Sibson v UK [83] , Sorensen and Rasmussen v Denmark [84] are all on the same wavelength that where a trade union may refuse membership [85] an individual may as well refuse to become its member.

1.2.2.4 Check-off agreement

By virtue of section 43 [86] of the ERelA, a check-off agreement can be considered to be a trade union membership fee which may be deducted from the employee’s/worker’s salary [87] . The same definition has been given by the Supreme Court in the case of Govt Teachers’ Union v Permanent Secretary MoE & Science [88] . The purpose of a check-off agreement is to consolidate a good running of the trade union and its activities through funding as held in the case of Mauritius Free Zone & anor v Mauritian Woollen And Worsted Mills Ltd [89] and for such agreement to be valid, there must be a document providing for its purpose and how it is to be provided from the wages of the workers/employers. Check-off agreements have been provided by the ERelA by its sections 43, 44 and 45 to enhance the employer-employee’s good industrial relations and to provide a more effective tool of securing an effective enjoyment of freedom of association at work.

As far as the right to freedom of expression is concerned , it can be deduced that it is appropriately curtailed by some limitations , which , if not present would have led to an abuse of the right to freedom of expression and an imbalance of the rights of the different parties of competing interests. While for the right to freedom of association, the law as it is actually now in Mauritius properly considers the negative right that is associated with it, that is, the right not to associate and has made provisions to prevent any closed-shop agreements.

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CHAPTER 2: PROTECTION FROM SLAVERY, FORCED LABOUR AND ILL TREATMENT

Slavery, forced labour and ill-treatment have been a historical worldwide phenomenon whereby human-beings are bought and forced to work against their will and objectified. This chapter will consecrate its first part to protection from slavery and forced labour (2.1) and its second part to ill treatment on the workplace (2.2).

2.1 Protection from slavery and forced labour.

2.1.1 Definition and scope of slavery

A slave, by a simple definition, is a human being, against his will, who becomes the property of another human being by a sale "contract" [90] . The dusty pages of the history of Mauritius all consecrate a chapter to the regime of slavery whereby slaves were brought by Dutch and French colonies to work on the island. Their "employment issues" [91] were regulated by the Code Noir 1723 Indo Océanique introduced by Louis XIV in 1723 as a set of rules to regulate the conduct of slaves.

When the British took over the island in 1810, they abolished slavery in 1835 since slavery became illegal in the United Kingdom and hence in the British colonies as well. Unlike other jurisdictions like Australia and France, our Criminal Code does not provide for slavery and forced labour upon a person as being an offence but the provision prohibiting slavery and forced labour in Mauritius is enshrined in section 6(1) and section 6(2) respectively of the Constitution 1968. It states that:

"(1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced labour."

2.1.1 Slavery and its jurisprudential approach

The Mauritian jurisprudence is very restrictive concerning the issues of slavery since domestic Courts addressed it when it was already abolished. The decisions of the English Courts will be taken into consideration to cater for the minimal amount of Mauritian cases dealing with slavery. It was held in the case of Mamoojee v Goolam Hossen [92] in obiter that the right to freedom is impeached when someone is held in a state of slavery and is subdued to his master.

Before the abolition of slavery, the Supreme Court used to look into matters brought by slaves on matters concerning their freedom. It was held in obiter in the case of Ghoolet v Gaytree Textiles [93] that the labour law that we have in force today is characterised by long term slavery and legislative evolution which is a dynamic process to suit the needs of the society. From the Code Noir 1723 Indo Océanique to the ERA [94] and the ERelA [95] , the primary concern was to prevent that the employee-employer relationship be governed by the Civil Code.

There have been drastic jurisprudential shifts in the approach of English Courts towards slavery since prior decisions have been rejected, later to be restored. In the case of Somerset v Steward [96] , the incompatibility of slavery with the principles of natural law was highlighted while in the case of Butts v Penny [97] , a slave was declared to be a "bien meuble", leading to the conclusion that for a slave to be declared a "bien meuble", slavery would be governed by property law.

The approach in Butts v Penny was rejected in the cases of Smith v Brown & Cooper [98] , Smith v Gould [99] and Rex v Inhabitants of Thames Ditton [100] which held that the land of England is a free land and any person to set his feet on this land is a free man, and can never be a slave. The same approach was adopted In the case of In the case of Pearne v Isle [101] which highlighted that a slave is a de facto property of his/her master and considered the case of Smith v Brown & Cooper as bad in law and Butts as the correct one governing slave trade. Pearne was rejected in Shanley v Harvey [102] , which considered the right of a slave to sue his/her owner. In Forbes v Cochrane & Cockburn [103] , it was held that even though there is no law preventing slavery in the United Kingdom, yet its incompatibility with the common law providing for an "equal distribution of justice" [104] is obvious.

Slavery is now prohibited in the United Kingdom which is signatory to the European Convention of Human Rights [105] whose Article 4 provides for the prohibition of slavery and forced labour.

The issue of human trafficking, which is a different issue but closely linked and associated with slaevery, has been analysed in the case of Rantsev v Cyprus and Russia [106] where the ECtHR held that trafficking is analogous to slavery whereby human beings, without discrimination, are priced, sold and objectified. Human beings cannot be treated as objects and it has been the target of anti-slavery laws to banish such inhuman practice which go against the spirit of human rights.

2.1.2 Forced labour and its jurisprudential approach

The difference between slavery and forced labour is that in the latter, albeit that there is control over the "person"; he is not the object of any ownership. In the leading case of Siliadin v France [107] , the ECtHR drew the line between slavery and forced labour and made it clear that a domestic servant working without remuneration is not the property of his/her master and hence is not a slave, but a domestic under forced labour.

The Supreme Court of Mauritius very recently in the case of Cuber Investment v Ballea [108] held that unilateral contracts of work are devoid of any legal value since they presuppose forced labour which is contrary to the spirit of section 6 [109] of the Constitution. In the case of C.N & V v France [110] , the ECtHR, while laying emphasis on the fact that a State should provide adequate legal framework for the prevention of the practice of forced labour, further stated that a distinction should be made between forced labour and the work provided by orphans for their relatives in exchange of a roof to live under. However in assessing whether this amounts to forced labour, the type and bulk of activities should be taken in consideration. The case of C.N v U.K [111] again stresses upon the obligation of a State to make domestic servitude an offence under its local laws.

One cannot claim forced labour for professional services for which remuneration has not been provided, the condition being that such free professional service will further be part and parcel of the person’s knowledge in his professional field. In the case of Van Der Mussele v Belgium [112] , it was held that a barrister who was under pupilage cannot claim redress under the law provision providing for forced labour for providing advice to the client(s) of the lawyer under whose wings he was a pupil due to the fact that this would be an add-on to the profession he is going to embrace later. The same reasoning was applied in the case of Å tefan Bucha v Slovakia [113] for a lawyer who was not compensated under the legal aid scheme.

Detainees and prisoners who work during their penal servitude are not protected under any legal enactment providing for forced labour as they are not even considered as "workers" or "employees". This state of affairs is reflected in strong precedent cases such as Van Droogenbroeck v. Belgium [114] and De Wilde, Ooms and Versyp v. Belgium [115] .

2.2 Ill-treatment on the workplace

2.2.1 Definition and scope of ill-treatment.

Section 7 [116] of the Constitution 1968 provides for the protection against inhuman and degrading treatment and reads as follows:

"No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment."

In the labour law context, the employee/worker-employer relationship must be well founded upon both mutual trust and respect. Therefore, the worker/employee is entitled to a minimum amount of respect on the part of his employer and the employer should refrain from belittling him in front of his colleagues and he should not be verbally abused. This would provide a favourable working environment for the worker/employee whose productivity may in turn be boosted. Lord Denning in the case of Wadham Stringle Commercials (London) Ltd v Brown [117] held that:

"Just as a servant must be good and faithful so an employer must be good and considerate."

2.2.2 Inhuman or degrading treatment and its jurisprudential approach

What is the trend in Mauritius? Again, precedent cases are of help. For instance, in the case of Bibi v Law Foon [118] , it was held that if ill-treatment, even though a fundamental human right, is of a daily basis and blends with the gross nature of the employer, it will not be considered as such. The worker/employee being displeased with his superior’s conduct does not justify ill-treatment; it should be intolerable such that the worker/employee cannot be productive anymore.

In the case of Jugoo P. v Microwise Computer Mart Ltd [119] , it was held that the mutual respect and trust between a worker/employee are terms which are tacitly echoed between the lines of a contract of work. On top of the alleged abusive language of the employer, the Supreme Court also considered the appellant’s conduct which was termed as "not a model employee".

In the case of New Battery Manufacturers v Ramtohul [120] , the Supreme Court stressed that the mere fact that the worker/employee is subject to verbal abuse is not enough, the words must contribute to the worker’s decision of leaving his job, amounting to a constructive dismissal. In the case of Razafindrabe v Overseas Fashion Ltd [121] , it was held that the worker had not been ill-treated due to lack of proof.

The study of various case law leads to the conclusion that the concept of ill-treatment, even though a fundamental human right, is very difficult to prove, and even if it is proved, it needs to be balanced with other conditions that contributed to it.

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CHAPTER 3: PROTECTION FROM DISCRIMINATION

The workplace can be both the reason why discrimination is rampant and also the very platform where discrimination can be eradicated to promote a non-discriminatory labour market. This chapter will consider the definition and scope of discrimination (3.1), the aims of section 20 of the ERA [122] , section 38 of the ERA [123] and provisions of the EOA [124] (3.2), the grounds for discrimination (3.3) and the equal pay and the pay gap (3.4).

3.1 Definition and scope

The central word to all non-discriminatory legislations which have been drafted is "equality". In his quest to attain equality in the employment field, to back the section 16 [125] of the Constitution, the legislator has drafted the EOA [126] which caters for discrimination arising out of employment issues. The definition of discrimination provided by Section 16 of the Constitution is thus:

"In this section, "discriminatory" means affording 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 …"

The classic case of Police v Rose [127] poses the principle that everybody is equal in the eyes of the law and on none should be inflicted upon discriminatory treatment, implying that everybody should be treated equally.

3.2 Aims of section 20 of the ERA, section 38 of the ERA and provisions of the EOA.

Both the EOA (section 2) [128] and the ERA (section 4(5) [129] ) add sexual orientation, marital status, and impairment to the grounds on which discrimination can occur, indicating that the concept on the grounds of discrimination is very dynamic and may eventually evolve with time. The EOA also caters for situation of sexual harassment at work. [130] 

The ERA attempts to eradicate discrimination by providing in its section 20 [131] for the equal pay for the same type of work and in its section 38 [132] , providing that a worker’s/employee’s work agreement if terminated on those grounds be tantamount to a discriminatory treatment. The EOA provides for meager exceptions [133] where different treatment would not amount to discrimination in the case where only a person of particular sex is suitable for the job. This limits the scope of the EOA. In the cases of Motor General Traders v State of AP [134] and Kedar Nath v State of West Bengal [135] , it was held that if equality resides at the heart of a particular classification, then it is not discrimination.

In the case of Hampson v. Dept of Education and Science [136] , the ruling was based on the case of Ojutiku v Manpower Services [137] where it was held that justification should be based that such discriminatory treatment is necessary for the smooth running of his enterprise. A parallel can be made with section 13 [138] of the EOA which provides for an exhaustive list of situations where a prospective employer may discriminate on solid grounds. In the case of London Underground Ltd v. Edwards [139] it was held that since the employee was a very good and long term one, the employer should have done his best to adjust his premises.

The EOA [140] provides for three types of discrimination namely, direct discrimination (section 5) [141] which occurs when a person by reason of his/her status is treated less favourably, indirect discrimination (section 6) [142] , where there is a conditional burden on the discriminated person and not on others due to his/her status and discrimination by victimization (section 7) [143] whereby a different treatment is served upon the aggrieved party when he threatens to denounce any discriminatory treatment on part of the discriminator.

To prove discrimination, as considered by English Courts, the concept of comparators has been widely used, meaning that a concrete or abstract person ( an in concreto appreciation or an in abstracto appreciation) would be used by the Courts to appreciate how less favourably the person alleging to have been discriminated has been treated compared to the comparator. For example the comparator of female alleging sex discrimination by her employer would be a male working within that same enterprise. In the case of Shamoon v Chief Constable of the RUC [144] the question that should be governing the issue should be "why has a different treatment been provided to the person alleging discrimination?"

In the case of Balmoody v UK Central Council for Nursing, Midwifery and Health [145] it was held that albeit the claimant has free choice of his comparator, the Employment Tribunal may reject it and form its own hypothetical comparator to assist itself in its judgment. In the case of Tees BC v Aylott [146] it was held that to construct a good hypothetical comparator, all the factors that led to the claimant’s differential treatment should be considered. A rather conflicting approach was used when considering discrimination on the basis of pregnancy. For instance in the case of Dekker v Sticthing Vormingscentrum Voor Jong Volwassenen Plus [147] it was stated that pregnancy being a natural stage of a woman’s life does not require a comparator in cases where it is a ground of discrimination. In addition in the case of Madarassy v Nomura International Plc [148] , it was held that a comparator might provide assistance to the court.

The Mauritian Jurisprudence does not expressly consider the issue of comparators but in the case of Guyot v Govt of Mauritius [149] , where it was averred that section 4 of the Employment Non Citizen Restriction Act was discriminatory since it gave more rights to the Mauritian male married to a non-Mauritian female than vice versa , the decision tacitly gives the impression that the judge considered a comparator to hit the nail on the head but the law was held non discriminatory since Parliament can legislate on such matters to prevent an influx of illegal immigration. This in turn does not give Parliament the freedom to legislate on matters which would de facto provide for discriminatory treatments by status.

3.3 Grounds for Discrimination.

The Mauritian legislation neither gives proper definitions of the grounds of discrimination nor provides any indication on measures that should be taken by employers to prevent any unintentional discrimination since employers are more often labeled as the "bad guys" as it was held in the case of Griggs v Duke Power [150] . Amendments to the EOA highlighting those issues would assist the Courts in construing the concerned legislations. The grounds provided by the different legislative frameworks governing discrimination cannot be considered as exhaustive since as it was held in the case of Khedun v PSC [151] , the mere presence of a person on the selective committee amounted to bias and discriminative against the prospective employee. Case law provides a flourishing approach to the different grounds of discrimination provided by the Constitution 1968, the ERA and the EOA.

For example, the issue of sex discrimination has been considered in the case of Thakooree v PSC [152] , where the complainant alleged that the fact of requiring additional qualification(s) for the post of Midwifery for female nurses was discriminatory but did not succeed her claim since her action was time barred.

Protection against sex discrimination is also afforded to people who undergo sex re-assignment as it was held in the case of P v S [153] whereby an employee was dismissed after having conducted a sex change surgery. The mere intention of a gender-reassignment triggers a protection under the anti-discriminatory laws in force as held in the case of Chessington v Reed [154] .The assumption that woman is unfortunately the weaker sex, would take time to be eradicated from the biased mind of the society and anti-discriminatory legislations are here to eradicate such mentality.

Discrimination on the basis of HIV/AIDS falls under the impairment umbrella as provided by section 2 [155] of the EOA. In the case if X v Y [156] it was held that the reason why prospective employees should not be discriminating against prospective HIV/AIDS infected workers/employees is that medical research has proven that they are aptly able to support the same load of work as a normal person not infected with HIV/AIDS. This tallies with the reasoning that everyone has a right to livelihood.

In the case of Maryse Chung Tze Cheong v The Mauritius Sugar Industry Research Institute [157] , the complainant succeeded in obtaining damages claiming discrimination on the basis of marital status where her employer offered more travelling tickets to married employees than single ones and this constituted a discriminatory treatment against the single employees.

Discrimination on the basis of one’s age has been considered in the case of Hodgson v Greyhound [158] where a bus line company placed an age limit of 35 years on its drivers, it should justify the age limit in the absence of which this would be discriminatory to those falling in the subset of under 35 years old. Experience and knowledge are potential justificiable reasons for curtailing age discrimination, but there is a loophole in our current law whether these are acceptable or not.

Disability is one ground of discrimination which has received ample consideration by the courts, and this may be because disabled persons are susceptible to be stereotyped as incapables. It is good here to have its impact on the workplace, for example in the case of Rugamer v Sony Music [159] it was held that disability refers to some physical or mental inaptitude. The cases of Cruikshank v Vaw Motorcast [160] and Law Hospital v Rush [161] held that in assessing impairment, work conditions should also be taken into consideration. This leads to the thought that a worker/employee should not be discriminated for an inability caused by work conditions. However if the inability caused by work conditions is affecting his productivity; this situation may not be suitable to assess the impairment.

In the case of Morse v Wiltshire [162] , where the disabled employee could not drive, it was held that if the employer took all the necessary measures to adjust the premises to adapt to the inability of the disabled person, then even though he discriminates and sacks the employee, he will not be liable. In the cases of Kenny v Hampshire Constabulary [

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