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Discrimination

What are the consequences of discrimination?

Discrimination can take a number of forms and there is no limit on the amount of compensation that can be awarded to successful Claimants. Awards can include compensation for personal injury suffered as a result of discrimination, as well as loss of earnings and injury to feelings.

What does the Equality Act cover?

The Equality Act 2010 makes it unlawful to discriminate against employees on the grounds of a ‘protected characteristic’. Protected characteristics include age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, marriage and pregnancy.

Race includes colour, nationality, ethnic and national origins. Belief includes the absence of belief as well as positive religious beliefs. Philosophical beliefs do not need to be the equivalent of a religious belief, eg, a belief in the importance of environmental issues would be protected.

Who is covered by the Equality Act?

The legislation covers not only “employees”, but also self-employed individuals who provide services under a contract for services. Employers are also potentially liable for acts of discrimination against contract workers, i.e. workers who work under a contract for the supply of services with another organisation, eg. agency workers and contractors.

How does discrimination arise?

Discrimination can be divided into five principal areas:

(1) Direct Discrimination

Treating an employee less favourably because of a “protected characteristic” than the treatment of another person who does not share that protected characteristic.

Similarly, Discrimination by Perception (discrimination because a person is perceived to have a protected characteristic) and Discrimination by Association (discrimination because a person is associated with a person who has a protected characteristic) are forms of direct discrimination.

Other than in age discrimination, there is no defence of “justification” for direct discrimination.

(2) Indirect Discrimination

Applying a rule or policy to everyone that places a person with a protected characteristic at a disadvantage.

This type of discrimination can be justified if there are reasonable and appropriate reasons for applying the particular rule or policy (“a proportionate means of achieving a legitimate aim”). The law does not apply for example where being of a particular sexual orientation, or holding a particular religious or philosophical belief, is an occupational requirement and that requirement is a proportionate means of achieving a legitimate aim.

(3) Victimisation

Subjecting a person to a detriment because they have relied on the Equality Act, or supported another person relying on that protection.

(4) Harrassment

Engaging in conduct relating to a protected characteristic that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Conduct related to a protected characteristic may be direct discrimination even if it does not constitute harassment.

(5) Disability: failure to make reasonable adjustments

Employers have a duty to make reasonable adjustments in respect of disability, including avoiding a rule or policy that places a disabled person at a disadvantage, removing physical features that cause disadvantage and providing auxiliary aids to a disabled person.

What is reasonable depends on the circumstances in each case, but adjustments must be reasonably practical, proportionate in cost and have regard to the size and resources of the employer and the effect on other employees.

Disability amounts to a physical or mental impairment that has a substantial and long term adverse effect on a person’s ability to carry out their normal day-to-day activities. Long term means that it has lasted or is likely to last for more than 12 months. The effect of medication must be discounted for the purpose of assessing adverse effect. The Equality and Human Rights Commission has produced detailed guidance to assist in identifying disability.

Discrimination also includes unfavourable treatment of a disabled person because of something arising in consequence of the disability that cannot be justified as “a proportionate means of achieving a legitimate aim”. This often occurs in relation to employees absent through ill health. If the employer terminates employment, it may amount to discrimination because the reason for the dismissal is something arising in consequence of the disability, i.e. absenteeism.

How is discrimination identified?

Discrimination is usually determined by comparing the treatment the complainant receives with a person without the protected characteristic (the comparator). If no direct comparator exists or can be identified then a notional comparator can be used.

In the case of pregnancy or maternity leave, no comparator is required. Unfavourable treatment related to a woman’s pregnancy, any pregnancy-related illness or exercising the right to ordinary or additional maternity leave is regarded as discriminatory. This additional protection lasts from the time the woman becomes pregnant until her return to work after maternity leave.

Can employers be liable for employee acts?

Employers can be liable for any acts of discrimination carried out by employees during the course of their employment (vicarious liability). The rule applies whether or not the employer was aware of the act of discrimination.

Can employers avoid liability for discrimination?

Yes. The employer must show that it took such steps as were reasonably practicable to prevent an employee from doing the act, or acts, complained of. It will not usually be sufficient to demonstrate that the employer had issued a general, verbal or written communication to all employees that discrimination will not be tolerated. Instead, it must, adopt and implement acceptable equal opportunities policies within the business.

The employer must be in a position to demonstrate that the equal opportunities policy is applied in practice. The employer must show that employees are aware of the equal opportunities policy and consider periodic training in equal opportunities for all staff in order to emphasise the principles set out in the equal opportunities policy. This is particularly important for managers and employees responsible for taking personnel decisions.

It is also necessary to monitor and keep records of any allegations of alleged discrimination or harassment and to take appropriate action. Any allegations of discrimination or harassment must be dealt with under a formal policy, properly investigated and resolved fairly.

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