Discrimination Overview

Introduction

Employers need to be more careful than ever before to ensure they are not being discriminatory in the workplace. From such an early stage as advertising for employees, employers must ensure that they are not, directly or indirectly, committing an act of discrimination.

They need to be aware that current discrimination law continues throughout employment and that now, even as retirement approaches there are factors of age discrimination to be considered.

As a starting point it should be recognised that there are no limits on the compensation that can be awarded in discrimination claims, and it is, therefore, essential that employers ensure their recruitment policies, terms of employment, and internal policies and procedures comply with the law. As the areas of discrimination widen, employers should consider whether their business would benefit from a professional review of their employment related documentation.

There are currently 6 main areas* of discrimination protected by legislation. They are:
• Sex discrimination
• Race discrimination
• Sexual orientation discrimination
• Religion or belief discrimination
• Age discrimination
• Disability discrimination

There are a number of ways in which an employer can be guilty of discrimination.

Directly

This occurs where someone is treated less favourably simply on account of their sex/race etc…

Indirectly

Indirect discrimination occurs where an employer treats all groups equally, but has some provision, criterion or practice which one group finds it more difficult to comply with. For example, a requirement that all employees are over 6 foot tall is not discriminatory in itself, but the reality is that a significantly smaller proportion of women than men would be able to satisfy that criterion, and it is, therefore, indirectly discriminatory.

It is important to note that with indirect discrimination, there is a defence of justification available to the employer**. If the employer can show that the ‘provision, criterion or practice’ was a proportionate means of achieving a legitimate aim he can avoid being found guilty of discrimination. The courts have held that this involves balancing the discriminatory effect of any condition with the reasonable needs of the party making the condition.

Through victimisation

If a person is treated less favourably because he has either brought or given evidence in some form of discrimination proceedings in the past, or because he has asserted a right or suggested an employer has infringed a right, the employer will be guilty of discrimination through victimisation.

Through harassment

Where a person has been the subject of some unwanted conduct which has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, they will have suffered harassment. If the conduct was as a result of the person’s sex/race etc…the employer will be guilty of committing discrimination through harassment.

Failure to make reasonable adjustments

For disability discrimination only, there is an additional duty on employers to make “reasonable adjustments” to an employee’s working conditions and environment, to try to accommodate their disability, and reduce the disadvantage they have when compared to other employees. Failure to make such a reasonable adjustment will result in the employer being guilty of disability discrimination.

With all cases of discrimination, both the actual person causing the discrimination (e.g. the racist interviewer, the sexual harasser) and the employer will be liable, although in some cases if an employer can show that they had measures in place (generally in the way of properly established and monitored equal opportunities policies and grievance/disciplinary procedures dealing with discriminatory complaints) to prevent such discrimination, they will have the basis of a defence.

How can Warners help?

Warners’ specialist employment lawyers can advise you on any area of discrimination law. If you would like assistance in this area please contact Angie Crush, who is a solicitor specialising in employment law, on 01732 747 903 or by email at angie.crush@warners-solicitors.co.uk

*There are other heads of discrimination with more specific rules
**Note the defence of justification also applies to direct age discrimination