What is discrimination?
Discrimination is when someone is treated unfairly for any of these reasons:
age;
disability;
sex;
sexual orientation;
marriage or civil partnership;
pregnancy or maternity;
race (including colour, nationality, ethnic and national origin);
gender reassignment; and
religion or belief.
These reasons are called 'protected characteristics' under the Equality Act 2010.
Discrimination based on any of these protected characteristics is usually against the law.
There are several types of discrimination.
Under the Equality Act, it is unlawful to discriminate, harass or victimise someone because they have or are perceived to have a “protected characteristic” or are associated with someone who has a protected characteristic.
Types of discrimination
Discrimination is a type of unfair treatment. It can be direct or indirect. Other types of discrimination include harassment, bullying and victimisation.
If you believe that you have been discriminated against when applying for a job contact us.
Direct and indirect discrimination
Direct discrimination
This arises when you are treated unfairly or worse than someone else because:
You have a protected characteristic, such as your race or age.
Someone thinks you have that protected characteristic (this is known as discrimination by perception).
You are connected to someone with that protected characteristic (this is known as discrimination by association or associative discrimination).
An employer should not ask prospective candidates questions about any protected characteristic eg marital status, sexual orientation when employing new staff members except in limited cases.
You can be discriminated against by a person who shares the same protected characteristic as you.
Direct discrimination on the ground of race:
Example 1
You are refused promotion because you are black, and the post goes to a less qualified or less experienced white man.
Direct discrimination by perception:
Example 1
An employer does not interview a job candidate because the applicant has an ethnic sounding name. This is direct discrimination irrespective of whether or not the job candidate has the characteristic.
Example 2
A supermarket is seeking to employ a check-out assistant. In the job application form, they put in a question asking if the applicant has any disabilities that will affect the applicant doing the job efficiently.
As disability is a protected characteristic, this question is unlawful. The employer should have asked all candidates if they require the employer to make any reasonable adjustments to complete the interview or any part of the employment process.
Marriage and civil partnership
The law on discrimination by perception does not cover marriage and civil partnership.
Direct discrimination by association
This means treating someone less favourably than another person because they are associated with a person who has a protected characteristic. This is called 'associative discrimination' or 'discrimination by association'.
Example 1
An employer offers flexible working to staff. Requests for flexible working are supposedly considered based on business need. A supervisor allows a man’s request to work flexibly to train for his ACCA qualification but does not allow another man’s request to work flexibly to care for his disabled daughter. If the supervisor’s decision is because the man’s daughter is disabled, this is likely to be direct disability discrimination because of the man’s association with his disabled child.
Example 2
Eva has a cousin who has undergone a sex change. After some of her friends find out about the surgery, they stop inviting Eva to lunch and to the office table tennis tournaments that take place every fortnight. This could be associative discrimination as gender change is a protected characteristic under the Equality Act 2010.
Discrimination arising from disability
This entails treating a disabled person unfavourably because of something connected with their disability with no objective justification.
Example 1
An employer dismisses a worker because he has taken three months’ sick leave. The employer is aware that the worker has leukaemia and most of his sick leave is because of his disability. The employer’s decision to dismiss is not strictly due to the employee’s disability. The employee was treated unfavourably as a result of something arising in consequence of his disability (i.e. the need to take a period of sick leave related to his disability)
Definitions of discrimination and unlawful behaviour in the Equality Act 2010
Harassment
What is harassment?
Harassment is defined as unwanted behaviour related to a protected characteristic eg race,sex, gender, sexual orientation etc which has the purpose or effect of violating someone’s dignity or which creates a hostile, degrading, humiliating or offensive environment.
Example 1
A builder addresses abusive and hostile remarks to a customer because of her race after their business relationship has ended. This would be harassment.
Employers are currently liable for harassment of their staff by people they do not employ.
Victimisation
What is victimisation?
Victimisation is treating someone unfavourably because they have taken some form of action relating to the Equality Act, e.g. made a complaint of discrimination under the Act or supported somebody who is doing so by for example appearing as a witness at a disciplinary hearing or at the Employment Tribunal.
Example 1
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 were subsequently refused a promotion because of that action, they would have suffered victimisation in contravention of the Act.
Objective justification
What is objective justification?
An employer can defend some discrimination claims such as Indirect discrimination, Direct age discrimination and discrimination arising from disability by arguing that the discrimination is justified. This defence is called “objective justification”.
Where this occurs if the employer or service provider can show that the practice or treatment is a proportionate means of achieving a legitimate aim then the claim will not succeed.
The objective justification test is applied in two stages:
Does the aim of the policy or treatment represent a real need, which is not discriminatory?
Are the employer’s or service provider’s means of achieving the aim proportionate i.e. (are there less discriminatory ways of achieving it?). If the employer’s or service provider’s aim is legitimate and there are no less discriminatory ways of achieving that aim, then in some cases the discrimination may be objectively justified.
Example 1
A gym provides several activities from yoga, squats, bench presses, treadmill sprints, weightlifting, aerobics, lunges, push-ups, sit-ups, planks, kettlebell swings, box jumps, bootcamp, aerobics, pilates, box fit, circuits, cycling, bodytone classes, sculpt and tone classes, mind and bod classes, cardio classes and pumps. On safety grounds, it requires all gym users to produce a medical certificate of fitness from their doctor when registering. A gym user objects. Although the gym management’s aim to ensure health and safety is a legitimate aim, the blanket policy they have imposed requiring all users to provide fitness certificates is likely to be unjustified as it could prevent some disabled customers from using the gym even though they could participate in some of the gym activities. It would be less discriminatory if the gym were to require fitness certificates for the more strenuous activities.
Example 2
A construction company has a policy of not employing under-21s on its more hazardous building sites. The aim behind their policy is to protect young people from health and safety risks associated with their youth, lack of experience and less developed physical constitution. A job application objects and threatens legal proceedings on the ground that the policy is preventing some potential employees with experience and well-developed physical strength over 18 years of age from applying for construction jobs. Whilst the company’s aim is supported by accident statistics for younger workers under 18 years of age on building sites and is likely to be a legitimate one the cut-off point of 21 years of age is likely not to be held to be a proportionate means of achieving the aim. The imposition of an age threshold of 18 would probably be a proportionate means of achieving the aim if the evidence supports this.
Failing to make reasonable adjustments
Failing to make reasonable adjustments for disabled people is also a form of discrimination.
Example 1
A diabetic employee who is disabled must eat at specified times to manage his blood sugar. He can only do this if he takes his work breaks at slightly different times from those of other staff. This has no effect on the employee’s ability to do his job as it makes his job possible. It would be a reasonable adjustment for the employer to let him alter his break times.
Example 2
An employer has a car parking policy that states that car parking spaces are only offered to company executives. An employee who is not an executive but who has multiple sclerosis and uses a wheelchair asks if he can be given one of the parking spaces. His employer agrees. This would be a reasonable adjustment to the organisation’s car parking policy.
Indirect discrimination
Indirect discrimination can occur when there is a policy that applies in the same way to everybody but disadvantages a group of people with a protected characteristic and you are part of this disadvantaged group. A policy can include a practice, a provision or an arrangement that applies to a group of staff or job candidates, but in practice is less fair to a certain protected characteristic. The fact that the employer did not intend the policy to disadvantage the group of employees does not matter.
The employees or applicants must be able to prove that:
There is a policy which the organisation is applying equally to everyone or to everyone in a group of which you are a part.
The policy must put people with your protected characteristic at a disadvantage when compared with people without it.
The policy has disadvantaged them personally or it will disadvantage them.
The organisation cannot show that there is a good reason for applying the policy despite the fact that it is manifestly disadvantageous to people with your protected characteristic for example, it is unfair to female employees but not to male employees.
Exception
Indirect discrimination can be allowed if the employer can prove that it has a good business case for the discrimination (this is called “objective justification').
Example A – Indirect discrimination
A company is recruiting for a director of communications. The company’s HR director advertises the job in the internal staff magazine. The only people eligible to apply internally are all men. This means the business could be discriminating indirectly on sex grounds.
Example B – Indirect discrimination
A job advert for a Head Buyer for a well-known Department Store says candidates must have spent 15 years working in retail. By doing this the business could be discriminating indirectly on age grounds. This is because the job advert indirectly excludes young people who may possess the skills and qualifications needed. The advert should have stated that candidates need a certain type of experience and knowledge and should have set out the key duties and skills required for the post so that candidates can see what is required.
Specialist Discrimination Solicitors
How can Pure Business Law help?
If you believe that you have experienced discrimination when applying for a job or have suffered or are suffering discrimination your current post, please contact us today by telephone on 01234 938089 or by email at enquiries@purebusinesslaw.co.uk. We are specialist Employment Law Solicitors based in Bedford and operate nationally.
A lot of people leave it late before they decide to get legal advice. Remember, discrimination has a limitation period of 3 months less one day. Do not leave it late! Get in touch with us today.
If you would like to discuss anything raised in this article, please contact us and speak with one of our solicitors. Pure Business Law is regulated by the Solicitors Regulation Authority and is a licensed member of the Law Society of England & Wales.
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