Discrimination
The law protects employees, workers and the self-employed from being discriminated against on any of the following protected grounds:
- Sex (including on the grounds of pregnancy, married or civil partner status and gender reassignment);
- Race;
- Disability;
- Religion or belief;
- Sexual orientation; and
- Age.
Discrimination in employment can occur at any stage – including before, during and after employment. For example, job advertisements and interview questions could be discriminatory, as could conduct during employment, the reason for a dismissal, or any work-related matters after the end of employment.
For employers, it is important to avoid discrimination claims for many reasons, not least in that they bring the wrong type of publicity to their business. From a financial point of view, there is no limit to the amount of compensation which can be awarded to a successful discrimination Claimant.
Discrimination is a tricky area for employers, not least because there are a number of different forms of discrimination.
Direct Discrimination
Direct discrimination is where a person is treated “less favourably” than someone else on protected grounds (e.g. on grounds of race, sex, age etc). Direct discrimination is the most commonly understood form of discrimination.
Example: say two employees have a fight at work in a situation where there is no evidence to suggest that one party was at more fault than the other. One employee is white British and the other is Asian. The employer dismisses the Asian employee because he is Asian and “more likely to be a trouble causer”. The white British employee is not dismissed.
Save for in relation to age discrimination, there is no defence to a successful claim for direct discrimination.
Indirect Discrimination
Indirect discrimination is a little more difficult to understand. Where an employer operates any “provision, criterion or practice” which puts people of one particular protected group (e.g. sex, race, religion, age etc) at a particular disadvantage compared with other people, indirect discrimination takes place.
Example: An employer makes it mandatory for employees to work Sundays. This requirement applies across the board and appears, at first glance, to be neutral. However, one employee’s religion forbids him from working on a Sunday. When applied across the board, this requirement would disadvantage members of this particular religion and disadvantages, and is therefore indirectly discriminatory.
Another example might be if, in a job advertisement, an employer said: “we are only employing people over 6 foot tall. This would mean that, statistically speaking, more men than women could apply for the job.
An employer may have a defence to a claim for indirect discrimination if they can show that it is justified in the circumstances.
Harassment
Harassment is “unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person”
Examples: display of nude calendars, racist, sexist or ageist banter, unwanted sexual innuendo, jokes referring to someone’s sexual orientation or religious belief.
There is no defence to harassment once it has been established.
Victimisation
The victimisation provisions are designed to protect people who have been involved in discrimination claims from being penalised for this involvement. It therefore protects those who have made complaints of discrimination (whether successful or not) as well as those who have given evidence in such matters from being less favourably treated as a result.
Example: A female employee complains that she has been sexually harassed by her line manager. She later leaves and the employer refuses to provide a reference to a potential new employer because she had raised that complaint.
There is no defence to victimisation, once established.
When is an employer liable for acts of discrimination by employees?
Employers can be liable for both intentional and unintentional acts of discrimination.
Furthermore, employers are vicariously liable for the discriminatory acts of their employees unless they can show that they did everything possible to prevent discrimination in their workplace.
What can an organisation do to protect itself from discrimination claims?
- The implementation of clear equal opportunities policies;
- The provision of equal opportunities training, particularly to managers and supervisors;
- Careful monitoring and control of “banter” and “horseplay” at work;
- Effective and well run grievance and bullying complaint procedures;
- Equal opportunities monitoring – but take advice on this;
- High profile support on equal opportunities at the highest level.
What should an organisation do if an employee makes a complaint of discrimination?
If you are an employer and would like to implement policies or train staff on discrimination and equal opportunities, or if an employee or ex-employee has raised a complaint of discrimination against you, please contact Sarah Cruice on 0114 253 6547 or email on sarah.cruice@ironmongercurtis.com
If you are an employee and feel that you have been discriminated against, please contact us for advice and / or representation. Please note that you must bring any claim for discrimination within three months of the date you allege that you were discriminated against, so do not delay in seeking specialist advice. Please call 0114 253 6559 for more information.
