Discrimination for Employers

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.

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:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Race
• Religion or belief
• Sex
• 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
• Voyeurism

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.

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;
• Compensation

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.