There are few areas of employment law which are so pervasive or so wide-ranging as discrimination. Unlike a lot of rights, discrimination applies to a huge range of people, and will apply to people who you haven’t even met, and jobs you don’t even have.
It’s often misunderstood, and frequently misreported, so the information about discrimination can be confusing and unclear. Here at Bridge, we aim to cut through the confusion, and make sure that, whether you are a company or an individual, you can get a clear picture of how this law affects you.
Discrimination is the “from seed to plate” law – because it starts before any relationship begins and survives its end. If one of the 8 protected characteristics (see below) apply, then the protection of the Equality Act 2010 is considerable, wide-ranging and often takes people by surprise.
- Recruitment – if you are placing an advert, or considering applying for one, discrimination law applies to you. Adverts must not discriminate, and if you, as an applicant, feel that you were unable to apply for a role, or treated less favourably than others when applying, then you may have a discrimination claim.
- Interviews – all job applicants are protected by discrimination legislation, whether they are appointed or not.
- During the contract – everyone who works for someone else, on whatever basis, is protected from discrimination
- Workers, contractors, agency workers – it doesn’t matter what the relationship is, unlike some protection, discrimination applies to everyone
- Workplace rules and regulations – however equally these are applied, it’s still possible for a rule or practice at work to be discriminatory to a section of workers.
- Termination – the way that the working relationship ends, however long it has lasted, can result in a claim for discrimination
- References – even after the relationship has ended, it’s still possible for a discrimination claim to arise from the way references are given, or not given.
Whether you are a company or an individual, you need to understand how discrimination law applies and whether you can rely on it, or whether you need to apply it to others.
As a business, a claim of discrimination has the potential to cause a wide number of problems, from the risk of high compensation and reputational damage through to the simple loss of time and resources in dealing with time consuming litigation.
Here at Bridge, we aim to put our clients in the best possible position to make their businesses as “claim proof” as possible, as well as ensuring that any claims which may be received are quickly, efficiently and expertly dealt with.
Understanding the law and how it operates is absolutely key for employers. It’s a wide-ranging subject matter, but the basic tenets of discrimination apply widely across the board. The law is now neatly contained the Equality Act 2010.
Who is covered?
This is something that not all employers are always aware of – discrimination law protection doesn’t just cover your employees. It also covers workers, and even job applicants. Basically, anyone who is working within the organisation is going to have this protection, including contractors and agency workers.
What is covered?
The protection covers discriminating against, harassment or victimisation. Discrimination is a generally well-understood term – essentially treating less favourably. Victimisation is a specific offence of treating someone less favourably as a result of seeking protection under the Act, and harassment is also specifically defined under the Act.
The Equality Act only covers specific, defined, characteristics which are:
- Gender reassignment
- Marriage and civil partnership
- Religion or belief
- Sexual orientation
Each of the above has specific definitions, and for many, a raft of caselaw which helps determine whether or not someone falls within the protection. It is often a highly technical question, and it will generally be the first thing which has to be determined before a claim can be brought. Specialist legal advice will be able to give you a good idea whether or not the protection can be claimed where is isn’t immediately apparent.
Disability is probably one of the most difficult to determine. Some illnesses are automatically considered to be disabilities and protected – cancer, MS and HIV. Anyone suffering from these has the protection of the Act. For other illnesses, it will depend on a number of factors, including the severity of symptoms, and the length of time they last.
There are a few conditions which are specifically excluded from the Act:
- A tendency to set fires;
- A tendency to steal;
- A tendency to physical or sexual abuse of other persons;
- Exhibitionism; and
Click here for a good source of information when considering disability
In relation to disability, anyone who satisfies the definition is not only protected from discrimination, but also has the added protection that an employer must afford them the added layer of protection of the duty to make reasonable adjustments.
The adjustments are designed to prevent any significant disadvantage caused by the premises, working arrangements or systems because of the disability.
A simple example of this is that an employer must generally not take absences related to a disability into account in any disciplinary process. This prevents the employee from being placed at a disadvantage because their disability means they need more time off work than someone without such a disability, and thus any decisions are taken on a level playing field with other employees.
Discrimination can be both direct and indirect. Direct is simply where someone is treated less favourably than someone else is either treated, or would be treated, because of their protected characteristic.
For example, if the employer doesn’t promote a female applicant because they do not believe that a woman would be able to act in a managerial role, that is direct discrimination. There is no defence to this (save for age discrimination).
In the case of pregnancy or maternity discrimination, the treatment needs only to be unfavourable, and not “less favourable than” another person. There is no need for any comparator.
It does not have to be done with intent – it can be a genuine belief in a stereotype. In the example above, the belief that women cannot manage men may be a genuine and well-meaning one, but acting upon it is still direct sex discrimination. Not all discrimination will be down to blatant prejudice and in some instances employers may believe they are even protecting their employees – such as not promoting a younger person in the belief that the older people will refuse to take orders from them and that this would be damaging to them. This is still discrimination, however kindly meant.
Indirect discrimination is where there is a provision criterion or practice (PCP) which is applied across the board, but which in fact has a disadvantageous impact on certain people with a protected characteristic. The employer may be able to show that, even though the PCP in question does unfairly disadvantage a protected set of people, that PCP is in fact justified as being a proportionate means of achieving a legitimate aim.
A good example of this would be a refusal to allow flexible working. As it is well established that a higher proportion of women than men have care responsibilities, a failure to allow flexibility would impact more significantly on women than men. This would put it as a potentially indirectly discriminatory practice. The employer would then need to show what the aim of the practice was, and that it was a proportionate means of achieving it. They would need to show they had considered if there were other ways to achieve the same goal with less impact, and if they could not do so, then the claim would stand.
Another example that is often used is a food manufacturer may have a rule that no beard can be allowed in food preparation areas. This would impact more highly on religions such as Sikhism or Islam, where beards are worn for religious reasons. The reason for it would be food hygiene. However, could they have considered a more proportionate means of achieving this – such as masks over the beard? If it is held that they could have done so, then their defence will fail.
There is a specific definition of harassment in the Equality Act.
If someone engages in unwanted conduct related to a relevant protected characteristic and that conduct has either the purpose or effect of
- Violating the person’s dignity or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for the person
In deciding if the conduct has the effect of doing this they will look a the perception of the person on the receiving end, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.
Unwanted conduct doesn’t have to be repeated, and the person doesn’t have to tell the perpetrator it is unwanted. It will depend on the facts of each case. Some conduct will be obviously unwanted, whereas in other cases it will be necessary for the recipient to make it clear that the conduct is unwanted before it becomes actionable.
The words “purpose or effect” make it clear that the harasser doesn’t have to have the conscious intent to harass – it is the impact on the complainant which matters.
There is a separate category of sexual harassment which has the same basic test, but the unwanted conduct is sexual in nature and relates to either sex or gender reassignment. With regard to this category, the protection extends to protect someone who is subjected to sexual advances and either accepts or rejects them, and is then subsequently treated less favourably as a result. So someone who rejected the sexual advances of their boss and was then refused promotion would be covered by both harassment and direct sex discrimination.
This offers protection to people who have committed a protected act – which includes alleging discrimination or harassment or bringing a tribunal claim for either. It will also protect those who may have helped someone else do this, whether being a representative at a hearing or a witness at a trial. If that person is then subjected to a detriment, they will have a claim that they have been victimised.
Victimisation means that something has happened which the person might reasonably consider changed their position for the worse or put them at a disadvantage.
Burden of proof
If a claim is brought against you, the complainant must establish that facts exist which, without a different explanation, could support unlawful discrimination by the employer. If that happens, it is then up to you to show that different explanation, and if you can’t, the claim will succeed.
If someone succeeds in a claim, they will be entitled to the following:
- A declaration of their rights;
- A Recommendation that the employer puts some measure or policy in place which would either rectify or reduce the adverse effect of the discrimination;
- A recommendation for the benefit of the wider workforce;
There is no upper limit to any compensation, and it includes injury to feelings as well as losses suffered. Awards can be high as a result.