Prohibited Forms of Discrimination
The law prohibits various forms of discrimination in the area of employment law.
Since the introduction of the Equality Act 2010 the law has been changed significantly, changing and building upon existing discrimination legislation.
The law aims to protect specific forms of characteristics from being a basis on which employers can discriminate. These ‘protected characteristics’ include:
- Age – The Employment Tribunal and EAT Statistics 2010 – 2011 record that 3,700 such claims were disposed of in 2010 – 2011 with a maximum award of £144,100 and on average £30,289 being awarded.
- Disability – 6,800 such claims were disposed of in 2010 – 2011 with a maximum award of £181,083 and on average where a claim is disposed of at a final hearing of £14,137.
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race – 4,900 such claims were disposed of in 2010 – 2011 with a maximum award of £62,530 and on average £12,100 being awarded in case that were disposed of at a final hearing.
- Religion or belief – 850 such claims were disposed of in 2010 – 2011 with an average award of £8,515 where claims were disposed of at a final hearing.
- Sex – 15,600 such claims were disposed of in 2010 – 2011 with a maximum award of £289,167 and on average awards where claims were disposed of at a final hearing of £13,911.
- Sexual orientation – with a maximum award of £47,633 in 2010 – 2011 and an average award of £11,671 where claims are disposed of at a final hearing.
The law prohibits particular forms of discrimination, including, for example:
- Prohibited conduct by means of direct discrimination – This is where one person treats another person less favourably than he would treat a third person because of the less favourably treated person’s protected characteristic. It covers situations where the less favourably treated person has two or more protected characteristics and he is discriminated against by reference to them. It also extends to situations where the person who is treated less favourably does not herself have the protected characteristic but she is discriminated against because of her association with somebody outside the employment relationship with those characteristics (e.g. a mother discriminated against because her daughter is disabled). It also covers situations where a person does not possess but instead is perceived to possess protected characteristics.
- Prohibited conduct by means of indirect discrimination – This is where an employer applies to an employee a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of the less favourably treated person. For example, where an employer uses a redundancy selection criterion ‘first in last out’ because this potentially discriminates against younger workers, or part-time workers score less highly in the matrix for retaining staff because this potentially discriminates against women.
- In respect of disabled persons a failure to make reasonable adjustments where the disabled person would be placed at a substantial disadvantage.
- Harassment – This is where a person engages in unwanted conduct related to a protected characteristic and that conduct has the purpose or effect of violating the other person’s dignity or creates, or has the purpose of effect of creating, an intimidating, hostile, degrading, humiliating or offensive environment for that other person. Sexual harassment is additionally prohibited in other forms – for example, where a person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex.
- Victimisation – This is where a person subjects the victim to a detriment because the victim has done a ‘protected act’ or the discriminator believes that the victim has done a protected act. A protected act means giving evidence or information in connection with proceedings under the Equality Act, bringing legal proceedings under the Act, or doing any other thing for the purposes or in connection with the Act (for example, lodging a workplace grievance).
Within the area of employment relationships the Equality Act 2010 section 39 prohibits a wide variety of acts such as:
- Discrimination in arrangements an employer makes for deciding to whom to offer employment
- Discrimination as to the terms on which employment is offered
- Discrimination by not offering employment
- Discrimination as to terms of employment (e.g. this prohibits making discriminatory decisions as to who gets a pay rise and who does not)
- Discrimination in the way an employer affords access to opportunities for promotion, training or transfers or any other benefit, facility or service
- Discrimination by dismissing an employee or by subjecting her to any other detriment
The ambit of the prohibition on victimisation is similarly wide.
A person who encounters discrimination can find the experience deeply upsetting as well as financially disastrous. Consequently, frequently compensation is awarded for injury to the feelings of the person who suffers the discrimination. Conversely, an employer falsely accused of discrimination rightly feels indignation and sometimes her business suffers as a result of the stigma associated with the allegations. Whether you are an employer or employee members of the team at Trident Employment Law can provide you with cost-effective advice tailored to achieving the best possible result in the circumstances of your particular case.