All workers including agency workers and former workers and also job applicants are protected from discrimination in, and in the context of, the “employment” (in this broad sense) on grounds of:
- Sex, including pregnancy and maternity
- Race, including colour, nationality, ethnicity, and ethnic and national origins
- Sexual orientation
- Religion or belief
These are known as “protected characteristics”.
Protection from unlawful discrimination extends throughout the whole life span of the employment relationship: from the processes and decision-making about who to appoint, through every aspect of employment, to post-termination dealings such as the giving of a reference or the handling of an appeal.
The principle forms of discrimination are:
This is where A (employer) treats B (worker) unfavourably because of a protected characteristic. The protected characteristic does not have to belong to B. A might treat B unfavourably because A perceives B to have a characteristic (such as a particular sexual orientation) that B does not in fact possess. A might treat B unfavourably because B has an association with another person with a protected characteristic (for instance if B has a disabled child). In both cases this is still unlawful direct discrimination.
Harassment is a form of direct discrimination, where A’s conduct creates an unwanted offensive, hostile, degrading or intimidating environment for B because of a protected characteristic (whether or not it is their characteristic, as above). Sexual harassment is where an unwanted environment of that kind is created on sexual grounds.
Here, A applies a provision, criterion or practice (“PCP”) which is apparently neutral, but which puts people with a protected characteristic at a particular disadvantage, and puts B, who has that characteristic, at that disadvantage. An example might be a requirement to be a recent graduate. That is likely to disadvantage older candidates. If the employer can establish an objective justification for their PCP – ie that it is a proportionate means of achieving a legitimate aim – it will not be unlawfully discriminatory.
It is unlawful for A to treat B unfavourably because B has made a complaint about discrimination (or A anticipates that B is likely to do so). It makes no difference whether or not B’s discrimination complaint is well-founded. Provided that it is made in good faith, B has legal protection from any retaliation by A.
This is a special protection that applies only to the characteristic of disability. Where a PCP puts a disabled person at a substantial disadvantage, B is under a duty to take such steps as are reasonable to make adjustments to remove or minimise this disadvantage. This is one of the most common areas of dispute in the discrimination field between employers and workers. Expert advice from Occupational Health about what adjustments would be helpful to a disabled worker is usually a good starting point from which an employer can assess what would be reasonable in the context of their business.
There are limited exceptions to direct discrimination being unlawful, where the nature or context of a role requires a person not to possess a protected characteristic. Occupational requirements occur most frequently in faith based organisations, where there may be a legitimate requirement for post holders to be of a particular faith.
Remedies for discrimination
Workers who have been discriminated against may bring complaints in the Employment Tribunals without any requirement for any length of service, and at any stage before, during or after employment, providing that they initiate the legal process (through ACAS Early Conciliation) within 3 months of the date of the act of discrimination, or the date of the last in a series of acts. Damages for discrimination are not capped, but will be calculated based on actual and financial losses flowing from the discrimination, and an element for the injury to feelings caused by the discrimination. Unlike in other types of tribunal claims, individuals who are acting on behalf of the employer, such as the employer’s employees, can also be named as Respondents to proceedings alongside the employer (but not on a standalone basis).
Posted on 06/07/2016 in Legal UpdatesBack to Knowledge