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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 you would have been treated in the same way by your employer if you didn’t have a protected characteristic

Indirect discrimination – this is where an apparently neutral provision, criterion or practice is applied which puts you or would put you at a disadvantage compared with others who do not have your protected characteristic. If your employer can objectively justify the provision, criterion or practice, it would not amount to unlawful discrimination. An example of indirect discrimination could be your employer introduces the practice of requiring its staff to work on a Saturday. if you’re Jewish and observe the Sabbath, you can’t work on Saturdays. It doesn’t matter that there aren’t any other Jewish people who work in the same place. It can still be indirect discrimination if something would normally disadvantage people sharing your characteristic.

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 you have raised a grievance about alleged discriminatory treatment and after the grievance is resolved you are then subjected to detrimental treatment 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.

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

  • Failure to make reasonable adjustments – an example would be your employer refusing unreasonably to a phased return to work which has been recommended by a medical practitioner after you have experienced a period of sickness absence due to a disability.
  • Discrimination arising from disability – when you’re treated unfairly because of something connected to your disability rather than the disability itself.
  • Disability discrimination ‘by association’ – is when you treat someone 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 – you could even be discriminated against before you actually start employment, for example at interview stage.

Employees should also remember that successful discrimination claims can result in substantial damages as awards are uncapped unlike in most unfair dismissal scenarios. Claims against the NHS, the police and other public sector employers are not uncommon.

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 it may be possible 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.

If you think you have been discriminated against by your employer, contact a member of our specialist employment team today.

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