Discrimination

What is discrimination

Discrimination is when one person is treated less favourably than another for no valid reason. There are a number of types of discrimination within a number of areas that employees are protected against by the Equality Act 2010. This legislation has made obsolete all the old legislation and provides a much more structured and balanced protection.

The types of discrimination covered are

• Direct
• Associative
• Perceptive
• Indirect
• Harassment
• 3rd party harassment
• Victimisation

Direct discrimination

Direct discrimination takes place when an employee is treated less favourably than other employees because of a protected characteristic. It is irrelevant that it may have been unintentional as are the reasons for it. An employee may only have to prove intention to discriminate as opposed to actual discrimination.

Associative discrimination

Direct discrimination against someone because they associate with another person who possesses a protected characteristic.

Discrimination by perception

Direct discrimination against someone because the others think they possesses a protected characteristic.

Indirect discrimination

Indirect discrimination is less obvious and takes place where a provision, criterion or practice is applied to all employees, but is discriminatory because some groups are less likely or unable to meet it and it is detrimental because they personally cannot comply with it. The employer must show that it is objectively justified for an economic, administrative or other reason. There are very few exceptions.

Harassment

If the behaviour towards a person makes that person or any other person feel intimidated, the subject of hostility and humiliated and is unwanted, unreasonable or offensive and especially if it is of a repetitive nature that person or any other person may complain against that behaviour.

Harassment by a third party

Employers are potentially liable for harassment of their staff by people they don't employ if they fail to take reasonable measures against it happening.

Victimisation

Victimisation takes place when an employee is treated less favourably because they have complained or have given evidence of a discrimination, for instance to an employer or an Employment Tribunal, under the Act.

The areas of discrimination covered are

• Age
• Disability
• Gender reassignment
• Race
• Religion or belief
• Sex
• Sexual orientation
• Marriage & Civil partnership
• Pregnancy & Maternity

With the exception of Marriage & Civil partnerships and Pregnancy & Maternity all the areas of discrimination are covered by all the type of discrimination. The two excluded areas are both covered for Direct discrimination and Victimisation with Marriage & Civil partnerships also being covered for Indirect discrimination.

Comparators

To show that a discrimination has occurred the person potentially discriminated against must be able to compare themselves against another person in a very similar situation but of a differing protected characteristic. The comparator may be hypothetical. The issue of comparability can be complex.

Disability

Definition

To be classed as a disabled person they must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities but each case is assessed on it's own merits. In general a mental impairment must be a clinically well recognised illness, substantial means more than minor or trivial and long-term refers to a period of at least twelve months.

The normal day-to-day activities include, but not limited to:

• Mobility
• Manual dexterity
• Physical co-ordination
• Continence
• Speech
• Eyesight
• Memory

Less favourable treatment

An employer would be justified in treating a disabled person less favourably than a non disabled person if the nature of the disability significantly impeded the performance of their duties or would significantly reduce the value of any training provided.

Employer obligations

An employer must make reasonable adjustments to the work place to ensure that current and prospective disabled workers are not substantially disadvantaged by work arrangements or physical features of the work place. The employer may take into account the cost against his resources and the practicality of the adjustment.

Reasonable adjustments may include, but not limited to:

• widening doorways
• re-allocating some duties
• altering hours of work
• providing training
• providing supervision

Some discriminatory practices

Advertising

An advertisement must not favour one group or type over another by using stereotyped words or phrases, weighting the job description to favour a particular group or type or restricting the availability of the advertisement by using publications favoured by persons of a particular group or type.

Interviews

The questions asked must be relevant to the job and should be equally relevant to persons of all group or types and not based on stereotypical assumptions.

Opportunities

Access to opportunities for promotion, transfer or to any other benefits or services must be equal for persons of all groups or types.

Dismissal

A person can't be dismissed, suffer demotion, wage cut or withdrawal of employment privileges on the grounds of their groups or type.

Occupational qualification

If being of a particular group or type is classed as a genuine occupation qualification for the job it is permissible to discriminate.

Some examples of occupational qualifications

Counseling services related to sexual matters where being of a particular sexual orientation is essential.

Being of a particular sex may be required if for example:

• The job is being carried out at an establishment which caters for a single sex
• The work requires a married couple
• The work is in a private home and involves close physical or social contact with, or intimate details of, a person

Being of a member of a particular religious group may be required if they are to teach it.

Being of a particular racial group may be required if for instance the job involves:

• provision of personal welfare services to a particular racial group
• working in a public restaurant or bar, where authenticity requires members from a particular racial group

Clothing and personal appearance

If the rules for one group or type are more restrictive, are enforced more stringently, are unreasonable or are based on 'conventional' ideas, e.g. a woman must wear a skirt and a man must wear trousers.

Pregnancy

As pregnancy is unique to women, any less favourable treatment due to her condition is automatically classed as sexual discrimination even though it is impossible to use a person of the opposite sex as a comparator. The period of possible discrimination runs from conception to the end of the maternity leave.

Part time employees

As 85% of part-timers in the UK are women any less favourable treatment or employment benefits on a pro rata basis to full-timers could be classed as sex discrimination.

Positive discrimination

The encouraging of a particular group or type to apply for a particular position is illegal in most circumstances. In a small number of situations it is permissible to 'balance the books' between the groups or types, but it has to be able to be proven that there is a need for it.

Equal pay

It is unlawful to offer different pay and conditions where women and men are doing the same or like work or work rated as equivalent in the same employment.

Claims and awards

Complaints by employees may be made to an Employment Tribunal within three months of the last alleged contravention. If the case is proven the tribunal may make awards for four types of damages:

Loss of earnings

This is a straight forward calculation of the loss of earnings that the person will suffer from losing or being refused the job and may extend many years into the future. If the employee has mitigated any of the loss via a new job it will be taken into account in the calculation.

Injury to feelings

This may include the suffering as a result of stress and depression but apart from that there is very little guidance on amounts or circumstances and is left very much up to the individual tribunals.

Aggravated damages

This is in addition to an award for injury to feelings and is used to 'punish' (although it should not be) the employers of particularly bad cases.

Personal injury

The Court of Appeal stated that tribunals have jurisdiction to award damages for personal injuries as well as injury to feelings. This will normally take the form of a psychiatric injury such as depression.

There is no limit on the amount of award that can be made and interest can be charged. Most awards made are, generally, under £5000.00 but have been made for £125,000.00 in the past. This, however, bears no relationship the the awards made in America, after an appeal halved the original award a secretary walked away with over $3.5 million.