Employment Discrimination - Employers
The introduction of specific rules outlawing discrimination against workers on various grounds has been a key and developing feature of modern employment law. Anti-discrimination law is now predominantly found under the Equality Act 2010 although it is pervasive throughout many areas of employment law.
The general rule is that an employer is free to offer employment to whomsoever he chooses, subject to statutory restrictions. As an employer, you may be in breach of statutory requirements if you discriminate against a person on the grounds of:
- Sex or marital status
- Gender reassignment
- Religion or belief
- Sexual orientation
- Pregnancy and maternity
- Trade union membership
- Part-time work
- Fixed (limited)-term work
The Equality Act 2010 lists certain ‘protected characteristics’ (gender reassignment, marriage and civil partnership, race, religion or belief, sex, sexual orientation, pregnancy and maternity, disability and age). The Act protects employees, job applicants, agency workers, partners and directors. A claimant does not need to be an employee in order to seek protection from the Act. As such, employers need to tread more carefully to ensure there is no discrimination in the workplace.
Discrimination on any of the above grounds can take place either directly or indirectly;
Direct discrimination: An employer directly discriminates against an employee if it treats the employee less favourably than it treats, or would treat, another person in the same or similar circumstances, and does so because of one of the above characteristics.
If an employer advertising a vacancy makes it clear in the advert that Roma need not apply, this would amount to direct race discrimination against a Roma who might reasonably have considered applying for the job but was deterred from doing so because of the advertisement.
Indirect discrimination: An employer indirectly discriminates against an employee if it applies an apparently neutral provision, criterion or practice that puts those of the employee's protected group at a particular disadvantage compared to other groups. The employee must also suffer a disadvantage as a member of that group and the employer must be unable to show that its practice is objectively justified.
A woman is forced to leave her job because her employer operates a practice that staff must work in a shift pattern which she is unable to comply with because she needs to look after her children at particular times of the day, and no allowances are made because of those needs. This would put women (who are shown to be more likely to be responsible for childcare) at a disadvantage, and the employer will have indirectly discriminated against the woman unless the practice can be justified.
Harassment involves unwanted conduct that has the purpose or effect of violating a person's dignity or creating an offensive, intimidating or hostile environment. It is discriminatory if it is related to any of the characteristics listed above (except marital/civil partnership status and pregnancy/maternity).
Victimisation involves treating a person less favourably because they have complained (or intend to complain) about discrimination, or because they have given evidence in relation to another person's complaint. An employee must not be disciplined or dismissed, or suffer reprisals from colleagues, for complaining about discrimination or harassment at work.
Our employment law solicitors can offer specific advice on any of the areas above. The specialist lawyers can ensure that your recruitment process, terms of employment and internal policies and procedures are compliant with current legislation. If you are faced with a claim, we can advise you on its merits and, if need be, represent you in the Employment Tribunal.
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