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Employment Law

Discrimination

Equality in the Workplace

Employers need to be aware that the law now imposes an obligation on them to treat all employees and potential employees equally.

The Equality Act 2010 (‘the Act’) is a blanket discrimination law statute that replaces and harmonises all previous discrimination legislation.

Who is protected?

The Equality Act is very wide in scope in the protection provided in the workplace. It defines ‘employment’ as: ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’.

Employers’ duties under the Equality Act

Section 39 of ‘the Act’ refers specifically to discrimination against employees and applicants in the recruitment process:

(1) An employer (A) must not discriminate against a person (B) –

(a) in the arrangements A makes for deciding to whom to offer employment;

(b) as to the terms on which A offers B employment;

(c) by not offering B employment.

(2) An employer (A) must not discriminate against an employee of A’s (B) –

(a) as to B’s terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

(c) by dismissing B;

(d) by subjecting B to any other detriment.

(3) An employer (A) must not victimise a person (B) –

(a) in the arrangements A makes for deciding to whom to offer employment;

(b) as to the terms on which A offers B employment;

(c) by not offering B employment.

(4) An employer (A) must not victimise an employee of A’s (B) –

(a) as to B’s terms of employment;

(b) in the way A affords B’s access, or by not affording B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service;

(c) by dismissing B;

(d) by subjecting B to any other detriment.

What is Direct Discrimination?

When discrimination is ‘direct’ it is described in Section 13 of ‘the Act’ as less favourable treatment ‘because of a protected characteristic’. ‘Sex’ is a protected ground of discrimination. Therefore if an employer were to treat a woman less favourably by not considering her for promotion alongside her equally capable peers for the reason that she is a woman this would amount to discrimination.

The test an Employment Tribunal would use to decide whether an employee has been directly discriminated against is two-fold:

1) Has there been less favourable treatment?

This requires a comparison of the complainant with a real or hypothetical (for example where pregnancy or maternity discrimination is at issue) comparator to establish whether the complainant has indeed been treated less favourably than their comparator. The difficulty with this arm of the test is the level of difference required for there to be less favourable treatment. It is likely that trivial differences may not be enough to satisfy the test.

Treatment cannot simply be different; it must actually be less favourable. However, Section 13 (b) of ‘the Act’ identifies specifically segregation from others on grounds of race as less favourably treatment. Therefore employers should consider that any deliberate policy of segregation based on a protected characteristic might open them up to a well-grounded complaint of unlawful discrimination.

2) Was the reason for that less favourable treatment the protected characteristic?

The protected characteristic need not be the sole reason and so the fact that there were other reasons also contributing to the resultant difference in treatment does not restrict the liability of the employer. The Employment Tribunal will consider whether it is satisfied that ‘but for’ the protected characteristic in question, would the less favourable treatment have taken place? If it would have then the treatment is not likely to amount to unlawful discrimination.

There are some exceptions provided for in the Act, where the treatment would not amount to direct discrimination. These exceptions include:-

– Discrimination against a person because of their age if it was done as ‘a proportionate means of achieving a legitimate aim’.

– If a person is treated less favourably than a disabled person because they do not have a disability.

What is Indirect Discrimination?

Indirect discrimination looks more at the substantive equality of the results rather than at formal equality (which is governed by direct discrimination). An employer can only be sued on the basis of either direct or indirect discrimination, not both.

Employers should be wary of any provisions, criterions or practices in the workplace that may appear to be neutral, but in practice disproportionately adversely affect persons with a particular protected characteristic. If a practice or criteria has this effect then the employer may be liable for indirect discrimination. Lady Hale has described the law of indirect discrimination as ‘an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic’. The caveat to this is that the indirectly discriminatory measure is not unlawful if it can be shown to be ‘a proportionate means of achieving a legitimate aim’.

What is harassment and Victimisation?

The ‘Protected Characteristics’

An employer is legally prohibited from discriminating (either directly or indirectly) against an employee (or applicant for a position) on these grounds:

1) Age

Age discrimination can be based on a specific age group or a range of ages, for example, less favourable treatment of over fifty year olds generally. Employers need to be aware that claims for discrimination on grounds of age are just as likely to arise for a younger person claiming less favourable treatment as a result of being a youth as they are to arise in circumstances of less favourable treatment because of old age. Age discrimination is narrower in scope than the other protected characteristics because of the above mentioned objective justification under direct discrimination. However, there are circumstances allowed for by law whereby treating a person differently because of their age will not amount to less favourable treatment, such as differentiation of pay based on age pertaining to the national minimum wage for different age groups.

Employers may also be held liable where the discrimination is based on ‘apparent age’ even though this is not expressly provided for in ‘the Act’.

2) Disability

A disability is defined as a physical or mental impairment which has a substantial long-term adverse effect on a person’s ability to carry out normal day-to-day activities. The protection against disability discrimination extends to those perceived to have a disability also.

Disability is different from other protected characteristics in that protection is not only provided for direct and indirect discrimination, harassment and victimisation, but there is also a duty on the employer to ‘make reasonable adjustments’ where there is a provision, criterion or practice or a physical feature which puts a disabled person at a ‘substantial disadvantage’. Employers are also required to provide an ‘auxiliary aid’ should the disabled person be at a substantial disadvantage but for the provision of such an aid, in comparison to others who are not disabled.

It may also be unlawful, save some limited circumstances, to ask a potential employee about their health before offering them a job.

3) Sex

An employee should not be discriminated on grounds of their sex, i.e. on grounds of being male or female. There is no justification for direct sex discrimination except where for example the discrimination is an occupational requirement having regard to the ‘nature or context of the work’. An example of this is women’s refuges where it is an occupational requirement that the staffs are all women. The other justification is that the requirement is a ‘proportionate means of achieving a legitimate aim’. There are other exceptions, e.g. discrimination of persons of a particular sex from communal accommodations provided by the employer etc.

Equality of employment terms between sexes should exist. This means that it is unlawful for the employer to discriminate against an employee by paying an employee less because they are a female in comparison to a male that does equal work.

4) Race

Race as a protected characteristic includes colour, nationality and ethnic and or national origins. A racial group can comprise of more than one racial group. The example given by EHRC Employment code is that of ‘Black Britons’, which is a racial group comprising of people who are both Black and British citizens. There are no justifications for discrimination on these grounds.

5) Religion or Belief

An employee should not be discriminated against on grounds of religion or belief and that includes a lack of both. For religion this includes any branches or sects within any religion also. According to the EHRC Employment Code, a religious belief ‘need not include faith or worship of a God or Gods but must affect how a person lives their lives or perceives the world’. However there is good argument that any religious belief would only warrant protection if it was a serious and cogent belief and could include beliefs like humanism or atheism but not adherence to a particular football team. Therefore employees and candidates for a job are protected if they do not follow the same religion or do not follow a religion.

6) Sexual Orientation

A person’s sexual preference (heterosexual, homosexual or bisexual) cannot be used as grounds for discrimination. This includes a perceived sexual orientation which is incorrect and discrimination by association with someone of a particular sexual orientation.

7) Marriage and Civil Partnership

A person cannot be discriminated because of their marital status or civil partnership. Thus an employer cannot seek to promote only single women over married women, for example as this would be unlawful.

8) Pregnancy and Maternity

A woman is protected during her pregnancy and any statutory maternity leave to which she is entitled or even for the reason that she has sought additional maternity leave. During this time discrimination against a female employee will be treated as such and not as sex discrimination and the protection begins when the pregnancy begins and ends when the pregnancy ends. An employer should not take into account an employees’ pregnancy related illness when making decisions regarding her employment.

9) Gender reassignment

This provides protection for transsexuals proposing to undergo, undergoing or someone who has undergone part or all of the process of reassigning their sex. Therefore this includes persons who have not undergone any medical procedures but decide to live and dress as the opposite sex. Employers cannot treat a transsexual person less favourably if they are off work proposing to undergo surgery than they would treat other employees who were simply off due to illness.

Discrimination law is complicated and wide ranging covering various areas. Employers who have concerns or need advice relating to discrimination should contact a legal specialist who can advise them on their particular circumstances.

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