Current legislation protects employees against discrimination on the basis of one or more of nine “protected characteristics”. These are:
- Age
- Disability
- Gender Reassignment
- Marriage and Civil Partnership
- Pregnancy and maternity
- Race
- Religion and belief
- Sex
- Sexual orientation
Types of Discrimination
There are various types of discrimination and other unlawful conduct that apply to most (and in some cases all) of the protected characteristics:
Direct Discrimination - Occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.
Example: At a job interview, an applicant mentions she has a same sex partner. Although she is the most qualified candidate, the employer decides not to offer her the job. This decision treats her less favourably than the successful candidate, who is a heterosexual woman. If the less favourable treatment of the unsuccessful applicant is because of her sexual orientation, this would amount to direct discrimination.
Indirect Discrimination - May occur when an employer applies an apparently neutral provision, criterion or practice which puts workers sharing a protected characteristic at a particular disadvantage.
Example: A factory owner announces that from next month staff cannot wear their hair in dreadlocks, even if the locks are tied back. This is an example of a policy that has not yet been implemented, but which still amounts to a provision, criterion or practice. The decision to introduce the policy could be indirectly discriminatory because of religion or belief, as it puts the employer’s Rastafarian workers at a particular disadvantage. The employer must show that the provision, criterion or practice can be objectively justified.
Harassment - Occurs when a person engages in unwanted conduct which is related to a relevant protected characteristic and which has the purpose or the effect of:
- violating the worker’s dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.
Example: If a worker with a hearing impairment is verbally abused because he wears a hearing aid, this could amount to harassment related to disability.
Victimisation - It is victimisation for an employer to subject a worker to a detriment because the worker has done a 'protected act' or because the employer believes that the worker has done or may do a protected act in the future.
Example: A non-disabled worker gives evidence on behalf of a disabled colleague at an employment tribunal hearing where disability discrimination is claimed. If the non-disabled worker is subsequently refused a promotion because of that action, they would have suffered victimisation in contravention of the Act.
Instructing, Causing, Inducing and Helping Discrimination - It is unlawful to instruct someone to discriminate against, harass or victimise another person because of a protected characteristic or to instruct a person to help another person to do an unlawful act. Such an instruction would be unlawful even if it is not acted on.
Example: A GP instructs his receptionist not to register anyone with an Asian name. The receptionist would have a claim against the GP if she experienced a detriment as a result of not following the instruction. A potential patient would also have a claim against the GP under the services provisions of the act if she discovered the instruction had been given and was put off from applying to register.
If a worker suffers a detriment because of a protected characteristic, then he or she may sue for discrimination. If that happens, then the risks are high. There is no limit on the compensation that an employment tribunal can award.
Who is Liable for Workplace Discrimination?
If an employer unlawfully discriminates against or harasses a job applicant or worker, it will be liable for its actions.
Furthermore, employers may be liable for the unlawful actions of their employees or agents. Claims may also be brought against the manager, fellow employee or agent who was responsible for the discrimination, victimisation or harassment in question.
Under the Equality Act 2010 anything done by an employee in the course of employment is treated as having also been done by the employer, regardless of whether the employee's acts were done with the employer's knowledge or approval.
So, an employer can be "vicariously liable" for discrimination or harassment committed by an employee in the course of employment. However, there is a defence available to an employer if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act or from doing anything of that description.
Therefore, employers need to be particularly careful when dealing with any kind of alleged discrimination. Employers will need to adhere to the Equality Act, otherwise they will run the risk of a discrimination claim being made against them.
Employers should be taking a proactive approach to minimise the risk of discrimination and investigate thoroughly allegations that are made, as well as ensuring that there are up-to-date policies and procedures in place and that they are being readily followed.
Why Choose Howells to Assist with Your Workplace Discrimination Case?
Discrimination is a complex area of law and our employment team is highly-experienced at dealing with discrimination issues in the workplace and at representing both employers and employees during the course of any subsequent proceedings.
The team at Howells is recognised for providing employers with practical and commercially sound advice to reduce the risk of exposure to a claim and advising employees on their statutory rights and strategies to resolve disputes and avoid exposing oneself to the costs of litigation.
Please get in touch with our employee law solicitors today to learn more.
