The Nucleus employment law team is receiving an increasing number of calls about discrimination at work. In this article, we’ll be looking at how discrimination is defined under the law, and what steps you can take to deal with the problem.
Broadly speaking, discrimination is when you are treated unfairly because of a protected characteristic.
Direct discrimination is when you are treated less favourably than another employee, for example, by being dismissed or refused promotion, because of a protected characteristic. It is not enough to show that you have been treated badly and have a protected characteristic e.g. that you are disabled and have been dismissed. You normally have to compare yourself with another person in similar circumstances who does not share the protected characteristic and has been treated more favourably (a “comparator”). But to amount to direct discrimination, there must be no material difference between your circumstances and the comparator’s. So, for example, if you are a woman and are not offered a promotion and the job goes to an equally qualified and skilled man, you may be able to show sex discrimination. However, if the man is more qualified than you, then your circumstances are different and it will be more difficult for you to claim sex discrimination.
Similarly, if you are black and made redundant and your white colleague who does the same job is not, it will probably not be race discrimination if your selection was based on performance and your colleague’s appraisals show better performance than you.
Another type of direct discrimination is when you are treated unfairly not because of your own protected characteristic but because of the protected characteristic of someone you are associated with. For example, if you are dismissed because you are the carer of a disabled child and your employer assumes you will take a lot of time off to care for your child, this amounts to unlawful “associative discrimination”.
You may even be able to claim discrimination when you do not have the protected characteristic but your employer thinks you do – so called “perceptive discrimination”. For example, if you are subjected to unfavourable treatment because your employer believes you are gay when, in fact, you are straight, you can still bring a claim of direct discrimination based on your employer’s perception of your sexual orientation.
You can claim harassment if your employer engages in unwanted conduct related to a protected characteristic and the conduct has the purpose or effect of violating your dignity or creating a hostile, degrading or offensive environment for you. Examples include unwelcome sexual advances, homophobic comments or being teased about your age, race or disability.
Conduct is only seen as having the effect of violating your dignity etc. if it is reasonable for it to do so. Therefore, if you are hypersensitive and it was not reasonable for the conduct to have had the effect of violating your dignity, you will not be protected.
In addition, in order to amount to harassment, the conduct must be unwanted. Employers often claim that the conduct was mere banter in which the employee was an active participant and, in such cases, the tribunal will closely examine the facts to decide if the conduct was unwanted. There may be conduct which is not unwanted in the early stages but at some point, oversteps the mark and becomes unwanted.
Indirect discrimination can happen when the same rules or arrangements apply to a group of employees or job applicants, but, in practice, place employees with a certain protected characteristic at a particular disadvantage.
A shop manager introduces a rule that all employees must work two Saturdays a month in the shop. This rule puts Jewish employees at a particular disadvantage because it is contrary to the Jewish faith to work on Saturdays. Therefore, the rule could amount to indirect race discrimination. However, if the employee who is complaining about the rule is not a practising Jew, they cannot claim indirect discrimination as the rule does not put them at a particular disadvantage.
A job advert for a salesperson says applicants must have spent 10 years working in retail. By doing this the business could be discriminating indirectly based on age. This is because the advert excludes young people who may still have the skills and qualifications needed.
However, indirect discrimination may be lawful if the employer can prove a business case for the rule or arrangement ('objective justification'). For example, a superstore having a requirement that all its workers have excellent spoken English may be objectively justifiable for those employees in customer-facing roles but not justifiable for workers based in a stock room, and so amount to unlawful indirect race discrimination in relation to them.
Definition of disability - You are disabled under the Equality Act 2010 if you have a physical or mental impairment that has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. Long-term means it has lasted, or is likely to last, at least 12 months. Some illnesses and conditions such as blindness, cancer and multiple sclerosis are automatically deemed to be disabilities.
Discrimination arising from a disability is where you are treated unfavourably because of something arising in consequence of your disability and your employer cannot show the treatment to be a proportionate means of achieving a legitimate aim. For example, if you have multiple sclerosis and are dismissed because you had two months’ sick leave due to your illness, the dismissal will amount to discrimination arising from a disability. It will be for your employer to show that the dismissal was a proportionate means of achieving a legitimate aim.
Where a provision, practice or physical feature of an employer puts you as a disabled person at a substantial disadvantage, your employer has a duty to make reasonable adjustments. For example, if you use a wheelchair, your employer may have a duty to widen a doorway or provide a ramp. Or if you are unable to work your normal hours due to fatigue arising from your disability, your employer may have a duty to alter your hours.
Note that your employer does not have a duty to make all adjustments, just those that are reasonable. Factors a tribunal will take into account to determine if the adjustment is reasonable include the extent to which the adjustment will help ameliorate the disadvantage, the size of the employer and the cost of the adjustment.
Victimisation is where you are treated less favourably as a result of having alleged – in a tribunal claim or grievance - that your employer discriminated against you. For example, if you submitted a grievance that your employer discriminated against you because of your disability and you are then dismissed as a result of bringing the grievance, that is victimisation.
If another employee discriminates against you and the discrimination occurs in the course of your employment, your employer would be held responsible. This is known as 'vicarious liability'. For example, if a colleague sexually harassed you at work, your employer could be vicariously liable for the harassment. However, if your employer has taken reasonable steps to prevent and deal with this kind of behaviour, an employment tribunal may not hold them responsible. It is normally a good idea to bring a claim against the individual discriminator as well as the company since the individual cannot benefit from the “reasonable steps” defence and you can continue your claim against the individual even if the company becomes insolvent.
When applying for a new job, the employer must not ask you questions about any protected characteristic, for example by asking if you have any disabilities that will make doing the job difficult. The employer should instead ask all applicants if they need any reasonable adjustments to complete the interview or any part of the hiring process. However, there are some exceptions to this rule:
The first stage is to raise the issue informally with your employer.
If this doesn’t work, you can raise it formally. This is known as 'raising a grievance'.
Finally, if raising a grievance doesn’t work, you can make a claim to an employment tribunal within 3 months less than one day from the act, or last in the series of acts, of discrimination.
Please note the information in this article is correct as at 30th December 2020.
If you have any questions about discrimination, or seek representation in the employment tribunal, please get in touch with us.