phone icon020 8889 8300
divider

Discrimination

separator

T he Equality Act 2010 [2010 Act] harmonized and replaced some of the existing anti discrimination legislation while extending protection to characteristics which were not previously covered.  It covers all the same grounds that were previously covered and these are now referred to as “Protected Characteristics”. The 2010 Act protects: Potential employees, ex-employee e.g. giving of references, the self employed under certain circumstances, Agency and Contract workers. When making a claim it is now possible to bring a combined claim.

Combined Discrimination Claims

If the complainant is claiming discrimination because of a combination of two protected characteristics, e.g. sex and race it is now possible to bring a dual discrimination claim.

The Protected Characteristics

Discrimination in the workplace comes under the following headings:

  • Race:– connected with race and includes color, nationality, ethnic or national origins.
  • Sex:- connected with  gender, male or female.
  • Sexual Orientation includes heterosexual gay and lesbian employees.
  • Gender Reassignment, it is unlawful to treat a transsexual less favorably because s/he intends to undergo, or are undergoing or have under gone gender reassignment.
  • Religion or Belief:- Belief is not confined to religious belief. It can be philosophical provided that it is genuinely held, not an opinion, or viewpoint based on information currently available, able to attain a certain level of cogency, seriousness, cohesion and importance. It must also be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others. Belief in animal rights has been held to fall within the ambit of “Belief” for the purposes of the 2010 Act.
  • Pregnancy and Maternity:- against a woman throughout the period of her pregnancy and maternity or any other statutory maternity leave to which she is entitled.
  • Marriage and Civil partnership:– if employees are married or in a civil partnership. Single persons are not protected.
  • Disability:-if the employer knows or could reasonably be expected to know that an employee has a disability. This kind of discrimination is only justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim. It now includes indirect discrimination.
  • Age:- There is no discrimination be it direct or indirect if the employer can justify it as a proportionate means of achieving a legitimate aim. Discrimination connected to age is the only protected characteristic which affords an employer a justification for direct discrimination.

Types of Discrimination

Direct Discrimination

This may occur when an employee is treated less favorably than his/her work colleague because of a protected characteristic. Direct discrimination also includes discrimination by association and by perception.

  • · Discrimination by Association

This form of discrimination occurs if an employer discriminates against an employee because s/he associates with people who share a protected characteristic. It may occur whether or not the employee shares the same characteristic. To give an example: If an employee is subjected to less favorable treatment because s/he has a child or dependent suffering from a disability.

  • ·Discrimination by Perception

It is unlawful to discriminate against someone because they are perceived to fall within the ambit of a protected characteristic, even if the perception is wrong. To give an example: if an employee has been treated less favorably because s/he was wrongly perceived to be gay.

Indirect Discrimination

  • Indirect discrimination happens if an employer operates a policy which applies to everyone, but in practice has a discriminatory effect on people who share a protected characteristic.
  • A claim for indirect discrimination is subject to the defense of objective justification. If an employer can justify it as a proportionate means of achieving a legitimate aim.

Indirect discrimination is not unlawful in cases of pregnancy and maternity.

Who are protected in the workplace?

  • Employees working under a contract of employment
  • Self-employed provided that they are personally obliged to perform the work for the end user
  • Agency and Contract workers

Harassment

Harassment is defined as follows: “Unwanted conduct related to a particular protected characteristic, which has the purpose of violating the dignity of the individual or creating an intimidating, hostile degrading, humiliating or offensive working environment”

  • Harassment applies to all the protected characteristics except for pregnancy/maternity and marriage and civil partnerships.
  • Employees are protected from harassment because of perception and association. They may be able to complain of harassment or behavior that they find offensive even if they do not share the protected characteristic.
  • The perception of the victim is important and there can be a finding of harassment even if it was not meant to be intentional.
  • If the conduct is found to have the purpose of violating the dignity of the complainant that will lead to a finding of harassment. If not; the Tribunal will have to consider the “effects” of the behavior on the complainant.
  • A one off incident if serious enough may amount to harassment
  • A harassment claim can succeed in cases where the complainant has tolerated the conduct for years and even joined in the banter.
  • There is no requirement that the complainant should have made the perpetrator aware that his/her conduct was unwanted.

 

Third Party Harassment

The employer may also be held liable for third party harassment if:-

  • s/he is aware that it had happened before and it continues to happen
  • Aware that it had happened on at least two previous occasions
  • Failed to take reasonable steps to prevent it from re-occurring.

Victimization

Victimization occurs when an employee suffers less favorable treatment because:

  • s/he made a complaint or raised a grievance in connection with a protected characteristic
  • were suspected of doing so
  • Or because s/he helped someone else to make a complaint

Time Limits

The three month time limit for filing a discrimination claim to the Employment Tribunal starts to run from the last act of discrimination arose, not from the date the dismissal took place irrespective of whether or not there has been a dismissal.

 


separator