Anti-discrimination Legislation
It is unlawful to discriminate in recruitment or in employment on the basis of sex (including pregnancy and maternity) marital status, partnership status, gender reassignment, disability, race, age, sexual orientation, religion, belief, trade union membership or non-membership or status as full or part-time worker. It is also unlawful to discriminate by association i.e. because a relation has a particular orientation, belief or race.
Anti-discrimination legislation covers all public and private sector employees, traders, professional organisations, employers organisations and trustees.
Discrimination usually falls into one of four categories;
- direct discrimination;
- treating somebody less favourably on the grounds of the sex, race etc.,
- indirect discrimination; applying a general standard which in practice is disadvantageous on the basis of sex, race, harassment and bullying;
- victimisation; treating somebody unfairly, because, for example, they plan to raise a discrimination related grievance.
The legislation applies to all areas of employment including recruitment; terms and conditions; promotions and transfers; training; benefits; dismissals; pensions. A company or business can be liable for discrimination perpetrated by their employees.
Revised 2010 Legislation
The Equality Act 2010 revised consolidated and updated the UK law on equality. Discrimination in itself is not necessarily unlawful. The discrimination may be unlawful if it relates to certain protected grounds and the discrimination is because of that protected ground.
The protected grounds are
- gender,
- age
- disability
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- race
- religion or belief sex and
- sexual orientation
The prohibited acts are defined . The most important of these in the context of employment are those relating to recruitment, pay, terms and conditions and promotion.
Terms and conditions which purport to limit the person’s rights are void. The remedies for discrimination include unlimited compensation . There is no cap on awards
Direct and Indirect Discrimination
Direct discrimination is discrimination because of the relevant characteristic. Indirect discrimination is a provision, criteria practice or arrangement that is not ostensibly discriminatory but places persons in a protected category at a prospective disadvantage
In relation to direct discrimination, the person with the relevant characteristics must be treated no less favourably than somebody not having those characteristics. Accordingly, there must be a comparator and there must be no materials difference in the circumstances of the person concerned and the comparator.
In the case of indirect discrimination, the comparison is between one category of persons in the protected group and another category in the same circumstances.
There may be discrimination by association. Discrimination by association does not apply to marriage /civil partners, pregnancy and the maternity ground. It may arise where a person is treated less favourably because of the protected characteristics of another. This may arise for where a person looks after a disabled relative and is thereby treated less favourably
Defences
There are some limited defences to a discrimination claim. A person does not discriminate unlawfully by applying a requirement in relation to work to require a particular protected characteristic if having regard to the nature or context of the work
- it is an occupational requirement,
- the requirement is a proportionate means of achieving a legitimate aim and
- the person to whom the requirement applies (the claimant) does not meet it
Discrimination may be lawful where it is required by statute. This may occur in the context of health and safety.
In the case of indirect discrimination where the respondent had no intention to treat the claimant unfavourably, the tribunal may not award damages to the claimant unless it has first considered making a declaration or recommendation.
Positive Discrimination
Generally, positive discrimination is not permitted . There are some exceptions . The employer may make a reasonable evaluation of the requirement for positive discrimination to help those with a protected characteristic who are underrepresented. This may involve special training etc.
Where persons who share protected characteristics suffer a disadvantage connected to that characteristic or participation in an activity is disproportionately low on the part of persons with that characteristic the employer may treat a person more favourably in connection with recruitment or promotion provided
- the employer reasonably thinks the disadvantage exists
- the person having a protected characteristic must be as qualified as the person without
- the treatment must be on an individual basis rather than a general policy
- it must be a proportionate means of achieving a legitimate aim
Claim to Tribunal
If an Employment Tribunal finds that discrimination has occurred, the awards made can be high. There is no cap on compensation which may be awarded. Terms and conditions which purport to limit the person’s rights are void.
Claims must generally be brought within three months of the alleged discrimination. Generally, the employee must raise issues with the employer before bringing the claim.
The Tribunal has the discretion to extend the three-month period it is just and equitable to do so.Human Rights Act considerations may arise in many circumstances effectively making an extension more readily justifiable than in other cases.
Where the subject of the complaint extends over a period of time, it is treated as occurring at the end of the period. Failure to do something is deemed to occur when the person in question decided on it. In the absence of evidence otherwise, a person is taken to decide upon failure to do something when he does an act inconsistent with doing it or on the expiry of a period in which she might reasonably have been expected to do it
The Equality Act requires the claimant to prove facts from which the tribunal can decide in the absence of an adequate explanation, that the employer has committed the unlawful discrimination . Once this occurs, the onus on the employer to prove to the contrary
Compensation may be awarded to the extent that it is just and equitable to compensate for the loss incurred by the applicant.There is no statutory limit.
The tribunal may make a declaration regarding the applicant’s rights. It may order compensation. It may make a recommendation.
Where the case is one of indirect dissemination and it finds no intention to discriminate, it must first consider making a declaration and recommendation before awarding compensation.
