Discrimination and Equality

Practical advice in order to protect your business

Many employers can fall foul of this legislation without even realising they are in danger of doing so.

And if a case is brought it can cause sleepless nights and endless worry about the consequences.

Discrimination legislation was consolidated in the Equality Act 2010 and since then a number of cases have paved the way in clarifying discrimination claims that can be brought to tribunal.

As a business owner, you are subject to this Act even at the recruitment stage.

Solutions for HR understand how worrying this can be and, despite how complex the legislation can seem, we’ll support you and your team with pragmatic and practical advice in order to protect your business.

Worried about equality responsibility? See how we helped a business click discrimination and equality case study

Types of discrimination at work

The Equality Act 2010 introduced new terminology of ‘protected characteristics’, covering age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race or caste, religion or belief, sex, or sexual orientation. It is unlawful to discriminate against anyone on the grounds of any of these protected characteristics.

Discrimination falls under the following categories:

• Direct Discrimination – discrimination “because of” a protected characteristic, for example not employing someone because of their gender or disability.
  

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• Indirect Discrimination – when an employer has a policy, practice or procedure that applies to everyone but the policy particularly disadvantages people who share a protected characteristic and which cannot be justified in relation to the job.
  

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• Associative discrimination – discrimination against a person because they have an association with someone with a particular protected characteristic.
  

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• Perceptive discrimination – discrimination against a person because the discriminator thinks the person possesses that characteristic, even if they do not in fact do so.
  

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• Harassment – unwanted conduct related to a protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
  

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• Victimisation – when you treat someone less favourably or discriminate against them because they have pursued or intend to pursue their rights relating to alleged discrimination.

Discrimination can occur pre-employment, for example at the recruitment stage.

To provide a defence against any claims at recruitment, employers should evaluate candidates against set criteria and keep notes of the reasons for accepting and rejecting applicants.

Think carefully about the wording of recruitment advertisements as it is no longer possible to use words such as ‘young’ or ‘mature’ in job advertisements; and about the questions asked in interviews to ensure that nothing said or done during the recruitment process could be interpreted as discriminatory in any way.

In certain circumstances it may be lawful for an employer to advertise for applicants of a particular sex, race or age when this is an essential requirement of the job.

This might occur for example if a Chinese restaurant wished to employ only Chinese waiting staff for reasons of authenticity.

It is unlawful to discriminate against an employee or candidate for employment because she is pregnant or on maternity leave.

It is an offence to discriminate against any person who has a disability, unless there is objective justification for less favourable treatment.

Caution and professional medical advice should always be obtained and considered before any significant employment decisions are made where disability is a factor.

When employees are disabled, the employer has a duty to make ‘reasonable adjustments’ to their working practices and environment to enable them to fulfil their role.

Failure to consider reasonable adjustments is discrimination in itself.

Examples of adjustments could be providing wheelchair access, reducing hours of work or reallocating certain duties.

In particular, care and specialist advice must be taken when dealing with long-term sickness absence to avoid claims of discrimination.

Care should also be taken when making decisions about promotion, training and development.

Age can often come into play when considering such decisions, but these should be taken purely on merit without considering whether an employee appears to be too young or old to qualify.

Discrimination can even occur post-employment, for example, former employees can bring a victimisation claim after they have left if they are given an unfavourable reference because they threatened to bring a discrimination claim.

The ban on perceptive discrimination was extended in the Equality Act.

This protects employees who experience discrimination and harassment because they are wrongly thought to have a protected characteristic.

For example, workers subject to homophobic or islamophobic abuse are protected even if they are not in fact gay/Muslim.

The Equality Act 2010 gives both women and men the right to equal pay for equal work, with women and men being legally entitled to be paid at the same rate for like work, work rated as equivalent, and work of equal value.

Employers can also be liable for claims of discrimination resulting from harassment which may happen in the course of employment, even if the employer is unaware that such behaviour is taking place.

In order to protect themselves in this area, employers should ensure that they have an equal opportunities policy, make all employees aware of the policy and ensure that harassment of any sort will not be tolerated, and train managers and supervisory staff to recognise and handle cases of harassment.

Employers may also be liable for harassment related to any protected characteristic of employees by third parties who are not your employees or workers.

There is no maximum limit to the compensation in a discrimination claim, or length of service requirement.

In appropriate cases, the tribunal will make a substantial award for the loss suffered by the employee as a result of the discrimination, including injury to feelings and interest.

Both employers and their employees can be held responsible and liable for their actions where they discriminate at work.

To safeguard against such claims employers must promote equality and prevent discrimination through effective policies and training.