Employment Discrimination

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The Equality Act 2010 provides six different types of discrimination that are prohibited by law:

  • Direct Discrimination: when an individual is treated less favourably than others due to one or more of the protected characteristics.
  • Indirect Discrimination: where an organisational policy, applicable to all, places those with protected characteristics at a disadvantage.
  • Failure to make reasonable adjustments: where an employer has failed to ensure disabled people can access jobs, education and services as easily as non-disabled people.
  • Discrimination arising from disability: where an employee has been treated unfairly and this is connected to a disability. This is only applicable if the employer was aware or ought to have been aware that the individual had a qualifying disability. However, the employer may be able to show good reason for the unfair treatment which would render it lawful.
  • Harassment: unwanted conduct toward an individual relating to a protected characteristic that is intended to offend, humiliate degrade or intimidate.
  • Victimisation: when an individual suffers poor treatment due to a perception that they have or will have a protected characteristic.

 

What are the protected characteristics?

‘Protected characteristics’ is the legal term used to refer to the different types of discrimination that are prohibited by law under the Equality Act 2010. These apply in a broad range of environments and circumstances, including the workplace.

It is against the law to discriminate against or treat someone unfairly by reason of:

  • Age: It is against the law to discriminate against anyone on the basis of being young or old, being a specific age or belonging to a particular age group (‘over 70’, ‘18 – 21’ etc).
  • Disability: This covers both physical and mental conditions that the individual suffers now or have recovered from.
  • Gender reassignment: Individuals are protected by law from discrimination during all phases of gender transition, including if they are planning to transition, have already started the process or have already transitioned.
  • Marriage or civil partnership: Is it unlawful to discriminate against individuals for being married or in a civil partnership, and where they are separated but not divorced or the civil partnership has not been dissolved. They must be legally married or in a legal civil partnership to come under this class. They are not covered if they are engaged, widowed or a long term cohabiting couple.
  • Pregnancy or maternity: Employers are not allowed to discriminate against employees because they are pregnant or on maternity leave. This applies during the ‘protected period’ which starts when the employee is pregnant and ends when maternity leave ends or when they return to work, whichever is sooner.
  • Race discrimination: It is unlawful to discriminate on the basis of an employee’s skin colour, nationality, ethnic or national origin.
  • Religion or belief: Protection covers where an employee has certain religious or philosophical beliefs, where they are a member of an organised religion or have no religion.
  • Sex: It is unlawful to discriminate against an employee on the basis of being a man or a woman.
  • Sexual orientationEmployers cannot discriminate against someone because of their sexuality.

In reality, complaints can relate to more than one protected characteristic. For each characteristic complained about, the individual will need to put forward a separate case with evidence.

Protection from discrimination may still apply in certain circumstances where the unfair treatment is not on the basis of the individual themself having a protected characteristic. For example, if someone is discriminated against because they are perceived to have a protected characteristic, or if they have an association with somebody who has a protected characteristic, they may still be able to make a complaint.

Also, if someone supports someone else with a discrimination complaint or have made a complaint previously, any resulting unfair treatment could be deemed victimisation as a result of a protected act under the Equality Act 2010.

 

What is the difference between direct and indirect discrimination?

Direct discrimination applies where the employee has been discriminated against because of a protected characteristic.

Indirect discrimination is where individuals with a protected characteristic are disadvantaged due to a workplace practice, policy or process that applies to everybody.

Examples of direct discrimination could include refusal to hire, promote or train someone by reason of a protected characteristic. Examples of indirect discrimination could include a policy requiring employees to work on a religious holiday which could be deemed religious discrimination.

In some cases, indirect discrimination can be lawful. The employer must be able to show an ‘objective justification’ for the organisation’s discriminatory process or policy to achieve an aim that brings benefits (not just financial) that outweigh the discriminatory impact. The employer must also show there is no other route to achieve the aim.

 

What are ‘reasonable adjustments’?

The Equality Act 2010 places a legal duty on employers to make reasonable adjustments within the workplace so as to avoid discriminating against disabled workers or job applicants. This could include:

  • Interview arrangements, eg wheelchair access
  • Promotion, transfer & training opportunities
  • Ensuring the workplace facilities are suitable for disabled workers eg disabled parking facilities for disabled employees

 

Employers are required to consider any requests for reasonable adjustments, but they are not necessarily obliged to agree to them. What is reasonable depends on a number of factors, including the resources available to the organisation making the adjustment. For example, if an organisation already has a number of parking spaces it would be reasonable for it to designate one close to the entrance for the employee.

Failure to make reasonable adjustments can, however, provide grounds for a discrimination claim. As such, employers are advised to take professional guidance if they are unsure about any such request.

 

Dealing with discrimination complaints

The law provides protection to a broad range of individuals including employees, workers, some self-employed individuals and job applicants.

If an employee has a complaint or concern relating to unlawful discrimination, they should raise this with their employer. The organisation should have policies and processes in place to allow employees to raise their concerns and so that the employer can take appropriate action. Employees should be made aware of this process and managers should be trained to handle such complaints correctly, for example by keeping records of discussions.

In most cases, the matter would usually be dealt with informally, with a discussion between the employee and their manager or HR.

If the employee is not satisfied after informal discussions, they could bring a formal complaint under the organisation’s grievance procedure. Grievances must be handled properly and in a timely manner, with a fair and thorough investigation conducted by an appropriate individual and allowing the individual to appeal if they are not happy with the outcome. If the appeal also finds against them, they could look to bring a tribunal claim.

A claim for discrimination has to be brought within 3 months less one day of when the discrimination took place. For example, this could be the date when the individual was informed they did not receive the promotion.

 

How much is compensation for an employment discrimination claim?

If an employer is found by the tribunal to have unlawfully discriminated against someone, they could be made to pay compensation. There is no limit on the amount of compensation that can be awarded for a discrimination case.

The amount of compensation will be set to cover the financial losses incurred as a result of the discrimination. This award is made to put the employee in the position they would have been in had they not been discriminated against, and usually comprises loss of earnings and benefits in kind such as a company car, bonuses, health insurance or a pension.

Compensation may also be awarded for any personal injury and injury to feelings due to the unfair treatment. Compensation for injury to feelings is broken down into three bands, depending on the nature and severity of the injury proven by the employee.

The tribunal can also make a discretionary award of aggravated damages if the employer’s conduct has been unreasonable or if they failed to follow a fair and lawful grievance procedure.

 

Recruitment discrimination risks 

Employment discrimination protection extends to employees and to job applicants. Job candidates can expect to be treated fairly by the organisation, which means employers have to avoid discriminating against applicants throughout the recruitment process, including:

  • Wording of job advertisements eg are they specifying a minimum number of years’ experience?
  • Interview arrangements eg is the venue accessible if someone has a disability and would reasonable adjustments need to be made?
  • Interview questions eg asking personal questions, for example relating to family life or health, such as ‘are you planning to have any children?’?

During the interview, the employer can ask about the candidates ability to carry out the role but they should not ask about any disabilities or medical conditions they may have or the status of their health. If the applicant chooses to inform the employer about a disability, this cannot be used as a reason not to give them the job.

In certain circumstances, employers may be permitted to encourage applications from people who have a particular protected characteristic, but applications have to be open to all to avoid discriminating against people who don’t have the protected characteristics.

Job applicants who believe they have been discriminated against when applying for a job may be able to take action against the organisation. To make a complaint, they will need to show they are a viable candidate for the role applied for, for example, they possess suitable qualifications and relevant experience, and that the reason they were not given the job was due to a protected characteristic and comes within the protection of the Equality Act.

For employers, this means ensuring all staff involved in recruiting, shortlisting and interviewing candidates are fully trained and aware of the obligation to avoid unlawful discrimination and interview bias. Record keeping will be important as evidence of decision-making and it can be helpful to work to pre-agreed interview questions that will not be problematic or potentially discriminatory. Employers also have to ensure they consider all requests from job applicants to make reasonable adjustments when recruiting.

 

Need assistance?

DavidsonMorris’ employment lawyers have extensive experience advising employers in relation to unlawful discrimination disputes and claims. We can help you understand your obligations and legal options, and can advise on policies and procedures to help prevent complaints for workplace discrimination. Contact us for advice on workplace discrimination.

 

Employment discrimination FAQs

What is classed as discrimination at work?

Discrimination at work is when someone is treated less favourably than others because of a protected characteristic such as disability, maternity or sex.

What are the 4 main types of discrimination?

The 4 types of discrimination are direct discrimination, indirect discrimination, harassment and victimisation.

What is an example of being treated unfairly?

Discrimination at work can include treatment such as not giving someone a job because they have children; not promoting someone because of their age (too young or too old); treating someone unfairly because they complained about discrimination; or implementing a company policy that all staff must work on a Saturday, which would disadvantage Jewish staff who cannot work on the Sabbath.

Last updated: 7 September 2022

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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