14th November 2017
Discrimination legislation is a complex, constantly evolving and sometimes controversial area of law. There are many different types of discrimination, including: sex and sexual harassment; race; religion and belief; sexual orientation; pregnancy and maternity discrimination, and disability.
We provide advice for employees and employers, please contact us to discuss your specific circumstances.
The Equality Act 2010
The Equality Act 2010 brought together and updated all of the earlier UK discrimination legislation including the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1990. The Equality Act covers discrimination in employment; in the provision of goods and services and the public sector equality duty.
This overview looks at the way the Equality Act is designed to ensure the equality of opportunity at work, the right to equal pay, protection of the worker’s dignity and to prevent employers from punishing workers who raise discrimination complaints.
The Equalities and Human Rights Commission (“EHRC”) has produced an EHRC Employment Statutory Code of Practice which is not legally binding, but which tribunals must take into account, where it is relevant.
All areas of employment law are covered
Discrimination law covers all areas of employment including job adverts and the recruitment process, terms and conditions of employment, selection for redundancy, conduct during and sometimes out of work, capability and disciplinary proceedings and dismissals. It even covers work related matters after the employment has ended such as providing references.
It is unlawful to discriminate against an individual because of one or more of their protected characteristics. These are:
- Gender reassignment
- Being married or in a civil partnership
- Being pregnant or on maternity leave
- Race, which includes ethnic or national origin, nationality and colour
- Religion or belief, which includes lack of religion or belief
- Sexual orientation
Main Types of Unlawful Discrimination
The various types of discrimination apply to most, and in some cases, all of the protected characteristics.
Direct Discrimination Section 13
An employer directly discriminates against an employee if it treats that employee less favourably than it treats, or would treat, another person in the same or similar circumstances (the “comparator”) and the reason for less favourable treatment is a protected characteristic.
A straightforward example of direct discrimination might be that a suitably qualified woman would have been promoted if she had been a man. (But see Proving Discrimination below as to why discrimination claims are rarely straightforward these days).
Two new strands of direct discrimination have developed more recently. These are perceived discrimination and discrimination by association.
Perceived direct discrimination occurs when an employee is treated less favourably because the employer believes they have a particular protected characteristic, even if they don’t. For example, a Sikh employee is treated less favourably by his employer who wrongly assumes he is Muslim.
Direct discrimination by association occurs where an individual is treated less favourably because they are closely associated with somebody who has a protected characteristic. For example, a suitably qualified employee is refused promotion because she has a disabled son.
Direct discrimination can never be justified except when it relates to the protected characteristic of age. Direct discrimination on the grounds of age can be justified but only if it is a proportionate means of achieving a legitimate aim. One example of this working in practice is the statutory redundancy payment scheme which pays older workers and those who have been employed longer at a higher rate than younger workers. (Although the scheme has never been tested by the courts and some commentators argue that it could not be justifiable age discrimination).
Occasionally it will be a “genuine occupational requirement” (GOR) of the job to appoint somebody of a particular characteristic, for example a female health worker or a teacher of a particular religion to teach in a faith school. Providing the employer can justify the appointment as a GOR there will be no direct discrimination against other job applicants who don’t share that protected characteristic.
It is not direct discrimination to treat a disabled person more favourably than a person who is not disabled, or to give women special treatment in connection with pregnancy or childbirth.
Pregnant women and those on maternity leave do not need to be treated “less favourably” than others, only “unfavourably”, meaning they do not need to compare themselves against a comparator.
Indirect Discrimination Section 19
Indirect discrimination occurs when a rule or a policy (otherwise known as a provision, criteria or practice or “PCP”) applies to everybody equally but disadvantages one group with a particular protected characteristic more than others. One example of this would be the refusal by the employer to allow any part-time working. This policy may be applied to everybody equally, but it would disadvantage women as a group more than men because statistically more women have child care responsibilities. If a particular woman with child caring responsibilities then asked her employer if she could work part-time and her request was refused, that could amount to indirect discrimination against her as an individual.
Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim. In this example, the employer may say it is their legitimate business aim to service a particular client by ensuring that the employee working on that client account works full time.
Whilst that may be accepted as a legitimate aim, the tribunal must carry out a balancing exercise to evaluate whether the employer's legitimate business needs are sufficient to outweigh the discriminatory impact on the workforce generally and the claimant in particular, and ask whether the employer's aims could reasonably be achieved by less discriminatory methods.
Indirect discrimination does not apply to pregnant women or those on maternity leave.
Failure to Make Reasonable Adjustments for Disability Section 21
Once the employer knows, or reasonably ought to have known, that their employee is disabled, they have a duty to make reasonable adjustments to the workplace premises or practices (PCPs) that put the disabled person at a substantial disadvantage compared to non disabled workers. Reasonable adjustments can come in many forms and include allowing disabled employees to park near the door, or work on the ground floor, be given chairs with back supports, be allowed to work from home, or be given extra support at work in various ways. Whether it is reasonable or not for the employer to make the adjustment would ultimately be a matter for a tribunal which would take into account a number of factors, including:
- The size and resources of the employer.
- The practicalities of making the adjustment.
- Whether the adjustment would be successful in helping the employee overcome substantial disadvantage.
Discrimination arising from a Disability Section 15
This occurs when a disabled worker is discriminated against, not because of the disability itself, but something arising from the disability. For example, a disabled person with, say, cancer or multiple sclerosis may need to take more sick days because of their medical condition than a non-disabled person. Many employers apply a rule that once an employee has had a certain trigger amount of sick days, capability or disciplinary proceedings will be started. In the case of a disabled worker it could amount to discrimination arising from a disability if the employer does not adjust the sick day triggers to give them more leeway than a sick but non disabled worker.
Like indirect discrimination, discrimination arising from a disability can be justified if it is a proportionate means of achieving a legitimate aim. For example, the employer would not be expected to adjust its sickness absence policy to the degree that a sick and disabled employee may never be dismissed on capability grounds, particularly if all possible reasonable adjustments have been tried and failed to make a difference.
Harassment Section 26
Harassment is unwanted conduct, related to a protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading or offensive environment for that individual.
A one off incident can amount to harassment and the individual need not have made the harasser aware that the conduct was unwanted. This conduct can include a wide range of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes and pranks. In the case of Mrs Vento v Chief Constable of West Yorkshire Police, the tribunal held that the male police officers who would place her police hat on a shelf she could only reach using a step had committed an act of harassment.
Tribunals will also consider the purpose or the effect of the harassment on the individual. This means that even if the harasser did not intend to upset the individual, the behaviour could still amount to harassment. Where the harassment is based only on the ‘effect’ (i.e. the harasser did not intend to upset) the tribunal will consider whether it is reasonable for the complainant to regard themselves as having been harassed. This additional test is used by tribunals to discourage (in the words of the Employment Appeal Tribunal) “a culture of hyper-sensitivity or the imposition of legal liability in respect of every unfortunate phrase."
As with direct discrimination, the Equality Act protects an employee against harassment based someone else’s protected characteristics (discrimination by association) or the perception that the employee has a protected characteristic.
Harassment under Section 26 also applies to:
- sexual harassment which is unwanted conduct of a sexual nature;
- less favourable treatment because of an employee's rejection of or submission to harassment of a sexual nature
This second point might apply when an employee rejects the advances of her boss or line manager and he punishes her by, say, giving her unreasonable deadlines. It can also apply when the employee has given in to sexual harassment. We have used the example of the female employee being sexually harassed but male employees and transgender employees are equally protected against sexual harassment.
Victimisation Section 27
Victimisation under the Equality Act has a specific legal meaning and not the everyday meaning that many people apply to it. When an employee makes a discrimination complaint, be that verbally, or in a formal grievance or by submitting an Employment Tribunal claim, this is known as a “protected act”. A colleague who supports somebody making a discrimination claim, perhaps by being a witness or accompanying them to a grievance meeting, is also doing a protected act. The purpose of the victimisation clause is to protect people who have made or supported discrimination complaints from being punished by their employers. Victimisation is made out when an employer subjects a person “to a detriment” because they have carried out a protected act.
Who can bring a claim for discrimination?
- Job applicants can claim if they are turned down for a position because of a protected characteristic. Disabled employees can claim against a prospective employer for their failure to make reasonable adjustments for them during the recruitment stage.
- Employees and a wide range of workers not normally protected by employment law can make claims including casual workers and office holders.
- Ex-employees and ex-workers can also claim against their ex-employers in some circumstances. A number of ex-employees have successfully sued for victimisation when their ex-employer deliberately gave them an unfavourable reference as punishment for their discrimination complaints, or “protected acts”.
Who to claim against – the employer’s vicarious liability
The employee can submit discrimination claims against both their employer as a business and the individual manager or work colleague which discriminated against them. This is because the employer is vicariously liable for anything done by their employees in the course of their employment. This rule applies whether the employer knows about or approves of the discriminatory acts or not.
The Employer’s Defence to Vicarious Liability, Section 109
The employer will have a defence under Section 109 of the Equality Act if it can show that it has taken all reasonable steps to prevent the discrimination happening in the first place.
This defence only works if the employer can show that all reasonable steps were taken before the discriminatory acts occur. This is why so many employers now have equal opportunities and anti-harassment policies in their staff handbooks and include Equal Opportunities (EO) training as part of their induction procedure. This alone may not suffice. The courts have held that it is not enough simply to have these policies tucked away in a drawer; to establish a successful defence, the employer must show genuine commitment to equal opportunities. They can do this by giving meaningful EO training, refreshing that training regularly and ensuring its line managers are genuinely committed to equal opportunities.
If you are an employer and would like further information about protecting your business against discrimination claims please contact Deborah Scales on Deborah.firstname.lastname@example.org or on 01234 263 263
Proving Discrimination – stereotyping and the burden of proof
The courts recognise that direct evidence of discrimination is less common these days. Often the discrimination will not be intentional but will be based on stereotyping and assumptions that the individual will “not fit in”.
In the case of Swiggs and others v Nagaranjan the House of Lords (as it was then) established that tribunals must consider ‘the reason why’ the worker has been treated as he has. This calls for some consideration of the mental processes, both conscious and subconscious, of the alleged discriminator.
When assessing whether unlawful discrimination has occurred, the tribunal must also apply a two stage test which reflects the requirements of the EU Directive on the burden of proof. The first stage places a burden on the claimant to establish a “prima facie” case of discrimination. Where the claimant has proved facts from which inferences could be drawn that the employer has treated the claimant less favourably on a protected ground, then the burden of proof moves to the employer. The employer must then prove, on the balance of probabilities, a lawful reason for the worker’s treatment.
An example might be where the employer could demonstrate that the fact that a pregnant worker’s fixed term contract was not renewed was not connected with her pregnancy but because funding for the work she had been doing has been discontinued.
Compensation and other remedies
There is a special kind of compensation available in successful discrimination cases (and also in whistle-blowing cases) called “injury to feelings”. This is to compensate the claimant for the distress, anger, embarrassment, upset and hurt caused by the unlawful discrimination. An award for injury to health is also available where an employee’s health has suffered as a result of the discrimination, with clinical depression and stress related conditions being a common feature.
Where the discrimination has lead to the claimant’s dismissal they will also be able to claim a basic and compensatory award for unfair dismissal and loss of earnings. Unlike unfair dismissal compensation awards, which are subject to a statutory cap, these awards are unlimited.
In addition to a monetary award the tribunal may also make the following orders:
- A declaration of the rights of the parties
- An appropriate recommendation as to what steps the employer should take to reduce the adverse effect of discrimination on the claimant or any other person.
Time limits to make a discrimination claim
A discrimination claim must normally be submitted to an employment tribunal no later than three months less one day that the date of the act complained of. Acts occurring more than three months before the claim is brought may still form part of the claim if they form part of a course of conduct extending over time and the claim is brought within three months of the end of the period.
The tribunal may accept out of time discrimination claims where it is “just and equitable” to do so.
Time can be extended under the statutory and compulsory Acas early conciliation process.
The content within these pages and legal updates are for general information purposes only and intended to raise your awareness of the issues covered. They are not able to cover all aspects of the law relating to the issues raised, nor are they a substitute for specific legal advice.
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