Discrimination

Discrimination occurs when people are treated differently due to a ‘Protected Characteristic’.

Under the Equality Act 2010 there 9 protected characteristics, these are:

• age,
• gender reassignment,
• religion or belief,
• disability,
• race,
• sexual orientation
• sex
• marriage and civil partnership,
• pregnancy and maternity

Discrimination can take many different forms, as outlined below:

Direct discrimination

A person discriminates against another, if because of a protected characteristic, that person treats another less favourably than the person would treat others. It is usually helpful to ask the question of whether as an employer you would have been treated the employee in the same way if they didn’t have a protected characteristic

Indirect discrimination

This is where an apparently neutral provision, criterion or practice is applied which puts an individual or would put an individual at a disadvantage compared with others who do not have a protected characteristic. If as an employer you can objectively justify the provision, criterion or practice, it will not amount to unlawful discrimination. An example of indirect discrimination could be your business requires its staff to work on a Saturday. If you have an employee who is Jewish and they observe the Sabbath, then their religion would prevent them from working on a Saturday. It can be indirect discrimination if something would normally disadvantage people sharing a protected characteristic. However, if as an employer you are able to demonstrate that the practice or requirement is a proportionate means of achieving a legitimate aim, it may not be unlawful.

Victimisation

This is where a worker is treated differently because he or she has previously complained of discrimination. An example of victimisation could arise if an employee has raised a grievance about alleged discriminatory treatment and after the grievance is resolved, the worker alleges that they are then subjected to detrimental treatment by the employer; such as being overlooked for a promotion.

Harassment

This is unwanted conduct related to a protected characteristic which has the purpose or effect of violating a worker’s dignity or creating an intimidating, hostile, degrading or humiliating or offensive environment.

Disability discrimination

In relation to disability discrimination, there are potentially three additional forms of discrimination:

• Failure to make reasonable adjustments – an example would be where and employee requires a phased return to work which has been recommended by a medical practitioner after they have experienced a period of sickness absence due to a disability.
• Discrimination arising from disability – where a worker is treated unfairly because of something connected to the disability rather than the disability itself.
• Disability discrimination ‘by association’ – is where a worker asserts that they have been treated unfairly because of someone else’s protected characteristic. This could be a friend, spouse, partner, parent, or anyone with whom they associate. For example, not employing a mother because she has a disabled child is associative disability discrimination.

Discrimination ‘by association’ also applies to most, but not all of the protected characteristics listed above.

There can also be something referred to as Perception Discrimination. This can arise when a ‘non-protected’ individual is subject to adverse treatment because an employer believes he or she has a particular characteristic, for example, this could be making homophobic comments to a heterosexual employee who is believed to be gay.

Unlike unfair dismissal claims there is no requirement to have had a minimum length of service and claims for discrimination can be brought whilst the employee or worker remains employed.

Problems can even start at the recruitment stage when a potential employee can make a claim for discrimination if he or she feels that they have not been selected for a position because some form of discrimination has occurred either prior to or at interview. In addition, vicarious liability can fall upon an employer when, for example, an employee discriminates against another employee in the workplace. This essentially means that if an employee discriminates whilst doing his or her job, the employer may have a liability for this even if not aware of it.

It is essential that every employer has a published Equal Opportunities Policy in place and proper training is given. Such actions will go a long way to protecting an employer.

Successful discrimination claims can result in substantial damages as awards are uncapped unlike in most unfair dismissal scenarios.

If an employee is successful in a claim for discrimination, the compensation awarded is classed as an ‘injury to feeling’. The Vento Guidelines set out 3 brackets of award and depending on how serious the Tribunal considers the discrimination to have been, will depend on whether the compensation award falls in the lower, middle, or upper categories of the Vento Guidelines.

Time limits are strict, and claims should be presented via the ACAS Early Conciliation process within 3 months less one day of the act of discrimination companied of. Sometimes a worker may be able to show a ‘continuing act’ over a longer period of time, but this will usually need to be the same continuing act, and not various different acts. The Tribunal does have some discretion to allow discrimination claims to proceed out of time if it is considered ‘just and equitable’ to do so.

Tougher legislation in recent years has meant that discrimination in the workplace has become a minefield for employers. Also increased awareness by employees of their legitimate rights means that if they feel they have been discriminated against they now have more opportunities to pursue their claims through the Tribunal. Employers have to come to terms with the fact we live in a litigious world and it makes good business sense to take professional advice. Our specialist employment team can advise you on your work practices and policies to ensure you are adhering to the law.