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Unlawful discrimination

There are a number of types of unlawful discrimination, including age, sex, sexual orientation, race, religious belief and disability. Part-time workers are protected against less favourable treatment.

All of the discriminations are enforced by Acts of parliament and make it unlawful to discriminate either directly, indirectly or by victimisation against any employee (or prospective employee) in any size or type of business due to their age, sex, sexual orientation (including homosexuals, heterosexuals and bisexuals), race, religious belief or disability.

A discrimination on racial grounds can be made when any one or more of colour, race, nationality, national or ethnic origins are used as a reason, intentionally or unintentionally, to treat a person less favourably than a person outside of that racial category or group. Colour, race and nationality are fairly straight forward to identify and categorise but ethnic origin has specific guidelines set out to assist identification.

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

Direct discrimination

Direct discrimination takes place when an employee is treated less favourably than other employees for a reason based on actual, perceived or in some way linked to the differing groups protected against discrimination in law. 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.

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.

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.

Harassment

If, due to their age, sex, sexual orientation, race, religious belief or disability, the conduct towards a person makes them 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 may claim they are suffering harassment.

Comparators

To show that a discrimination has occurred the person must be able to compare themselves against another person in a very similar situation but of a differing age, sex, sexual orientation, race, religious belief or disability (depending on the discrimination type). The comparator may be hypothetical. The issue of comparability can be complex.

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. There is also specific legislation to protect part-time workers.

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

The Equal Pay Act 1970 was introduced to make it 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.

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		Discrimination Unlawful discrimination There are a number of types of unlawful discrimination, including age, sex, sexual orientation, race, religious belief and disability. Part-time workers are protected against less favourable treatment. All of the discriminations are enforced by Acts of parliament and make it unlawful to discriminate either directly, indirectly or by victimisation against any employee (or prospective employee) in any size or type of business due to their age, sex, sexual orientation (including homosexuals, heterosexuals and bisexuals), race, religious belief or disability. A discrimination on racial grounds can be made when any one or more of colour, race, nationality, national or ethnic origins are used as a reason, intentionally or unintentionally, to treat a person less favourably than a person outside of that racial category or group. Colour, race and nationality are fairly straight forward to identify and categorise but ethnic origin has specific guidelines set out to assist identification. 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 Direct discrimination Direct discrimination takes place when an employee is treated less favourably than other employees for a reason based on actual, perceived or in some way linked to the differing groups protected against discrimination in law. 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. 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. 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. Harassment If, due to their age, sex, sexual orientation, race, religious belief or disability, the conduct towards a person makes them 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 may claim they are suffering harassment. Comparators To show that a discrimination has occurred the person must be able to compare themselves against another person in a very similar situation but of a differing age, sex, sexual orientation, race, religious belief or disability (depending on the discrimination type). The comparator may be hypothetical. The issue of comparability can be complex. 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. There is also specific legislation to protect part-time workers. 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 The Equal Pay Act 1970 was introduced to make it 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.
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