Employment and pensions
Avoiding charges of discrimination
Both the nature of the workforce and patterns of work have changed dramatically over recent years and there is now a considerable amount of legislation designed to protect employees from discrimination. As an employer it is vital that you are fully aware of your obligations and that you take action to implement them across your business.
Where do I start?
Deciding where to begin can be a challenge! Depending on the policies your business already has in place the best place to start is usually by establishing an equality policy and putting in place an action plan.
Creating/revising an equal opportunities policy will give you a good base from which to set out the expectations of the business in relation to equality and diversity.
Key to the success of any policy is not only that it exists but that it is put into action and all employees are given the appropriate training.
What is discrimination?
There are a number of different strands to discrimination.
Discrimination means treating an individual less favourably than you would treat someone else (who does not have that attribute) on the grounds of certain protected characteristics (PCs) such as:
- being or becoming a transsexual person
- being married or in a civil partnership
- being pregnant or having a child
- race including colour, nationality, ethnic or national origin
- religion, belief or lack of religion/belief
- sexual orientation
The key legislation relating to discrimination is the Equality Act 2010 which replaced former legislation such as the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995.
This factsheet considers discrimination only in respect of the employment field and gives a very brief overview. Further information should be sought as to the detail of the legislation.
The Act sets out the following concepts:
Direct discrimination occurs where an employer treats a person less favourably than another, for example on the grounds of their sex. This is usually overt discrimination. For example, this could be asking questions of a woman in an interview that might not be asked of a man - such as: how do you intend to care for your children if you are at work? or will your children interfere with your commitment to your job?
This occurs where someone suffers discrimination because they associate with a person who possesses a protected characteristic.
Discrimination by perception
This is where someone suffers discrimination because others think that they possess a particular protected characteristic, even if they do not actually possess that characteristic.
This is where a provision, criterion or practice is applied (or would be applied) which puts those with a protected characteristic at a particular disadvantage, and this cannot be shown to be a proportionate means of meeting a legitimate aim.
In simple terms this means that indirect discrimination will not be unlawful if it can be justified. To justify it, an employer must be able to demonstrate that it is a proportionate aim to fulfil a legitimate need.
An example of a practice which might indirectly discriminate would be implementing a policy regarding working hours and overtime which requires all staff to participate in an overtime rota when this may put women at a particular disadvantage as they are likely to be the primary carers of children.
In brief, this takes place where an individual is exposed to unwanted conduct on the grounds of, for example, his/her sex or unwanted verbal or non-verbal conduct of a sexual nature and this conduct or behaviour has the purpose or effect of violating the individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.
For employers the key point is to provide adequate training and put in place rigorous polices. Employers should ensure that all staff are aware that harassment of any kind is not acceptable. Any inappropriate behaviour should be dealt with promptly and effectively. This may include ensuring that there are no offensive materials in the workplace for example on walls or screensavers.
The Equality Act 2010 protects employees (in certain circumstances) from harassment by a third party, and means that employers are potentially liable for harassment of their staff by people they do not employ. Employers are only liable where the harassment has occurred on at least 2 previous occasions, and the employer is aware of this and has not taken reasonable steps to prevent it from happening again.
This is where an individual is treated unfairly because they have made or supported a complaint, or raised a grievance under the Equality Act.
Further detail concerning the different protected characteristics is set out below.
The Act protects people of all ages. However, different treatment because of age is not unlawful direct or indirect discrimination if you can justify it i.e. if you can demonstrate that it is a proportionate means of meeting a legitimate aim. Age is the only protected characteristic that allows employers to justify direct discrimination.
A person is disabled if they have a physical or mental impairment which has a substantial and long term effect on their ability to carry out normal day to day activities. The Act puts a duty on employers to make reasonable adjustments for staff to help them overcome disadvantage resulting from an impairment. It is discrimination to treat a disabled person unfavourably because of something connected with their disability, if the employer knows or should have known of the disability. It is unlawful, except in certain circumstances, for employers to ask about a candidate's health.
Sex discrimination is unlawful in relation to employment, vocational training, education, the provision and sale of goods, facilities, services and premises.
4. Gender re-assignment
The Equality Act provides protection for transsexual people ie someone who proposes to, starts or has completed a process to change his or her gender. Transgender people, such as cross dressers, who are not transsexual because they do not intend to live permanently in the gender opposite to their birth sex, are not protected by the Act. It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender re-assignment than they would be treated if they were absent because they were ill or injured.
5. Marriage and civil partnership
The Act protects employees who are married or in a civil partnership against discrimination.
6. Racial discrimination
It is unlawful for an employer to discriminate directly or indirectly or to victimise or harass an individual on the grounds of their race, colour, nationality or ethnic or national origins.
Are there any exceptions?
The race discrimination legislation does allow employers to present a job as being open to only those of a particular race if it can be said that there is a genuine occupational requirement and this is a reasonable means of achieving a legitimate aim. The most obvious examples of this are where a play requires a black actor or an Italian restaurant requires an Italian waiter for authenticity.
7. Discrimination on the grounds of religion or belief
It is unlawful to discriminate on the grounds of religion, or lack of religion, or belief or similar philosophical belief. Belief means any religious or philosophical belief, or lack of such a belief.
There are very limited circumstances where having a particular religion or belief or complying with the religious belief or ethos of an organisation is a genuine occupational requirement.
8. Discrimination on the grounds of sexual orientation
The Act protects bisexual, gay, heterosexual and lesbian people
It is important for any business to be aware that the consequences of non-compliance with discrimination legislation can be costly. Compensation for a successful discrimination claim in the Employment Tribunal is uncapped and therefore can potentially be very expensive.
Normally claims must be lodged three months less one day from the date of the incident complained about. The time limit can be extended if, in all the circumstances of the case, the Employment Tribunal considers that it is 'just and equitable' to extend time, however such extensions only happen in limited circumstances.
How to avoid charges of discrimination
- Create/review your equal opportunities policy
- Appoint someone to be responsible for equal opportunities within the business
- Ensure that all employees are aware and are trained on the policy
- Ensure that equal opportunities are given priority and that the policy is implemented and acted upon throughout the business
- Continually review/update policies to ensure they reflect the current position and keep employees' training up to date
- Collate data to check equal opportunities policies are being implemented. (Ensure that advice is taken when collecting this data in respect of the data protection regulations)
- Ensure that your recruitment processes and advertisements do not discriminate against anyone or a particular group of people.
How can we help?
Our experienced employment department can help you with all aspects relating to employment, from dismissal to discrimination claims. Please note that this fact sheet provides only a very brief over view of the general concepts of a very complicated area and detailed advice should be sought.
For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.