Discrimination at Work

Contracts of Employment
July 4, 2016
Dismissal from Work
July 4, 2016

The Equality Act 2010 (the Act) governing all forms of discrimination came into force from 1 October 2010 onwards. The core provisions were effective from this date, with some other provisions coming into force at different times.

Although there are differences in the law governing age, race, sex, disability, religion, sexual orientation, gender reassignment, marriage and civil partnership and pregnancy and maternity (the protected characteristics), the general forms of discrimination are highlighted below.


Direct discrimination

An employer will directly discriminate if on the grounds of a person’s protected characteristic they treat a person less favourably than the way in which a person not having that protected characteristic would be treated. Complainants alleging direct discrimination usually have to compare themselves with either an actual or hypothetical comparator to show less favourable treatment.

Direct discrimination remains unchanged by the Act, apart from the fact that a form of direct discrimination occurs when someone is treated less favourably than another because they are thought to have a protected characteristic (perceived discrimination), or because they associate with someone who has a protected characteristic (associative discrimination) – see below.

Example

Refusing a black woman employee’s application for promotion because the employer believes that the organisation’s clientele would prefer a white male manager. This is direct sex and race discrimination.


Direct discrimination – associative discrimination

Associative discrimination is direct discrimination against someone because of their association with another person who possesses a protected characteristic. This previously applied to race, religion or belief and sexual orientation but since 2010 is expressly extended to cover age, disability, gender reassignment and sex. However, associative discrimination linked to pregnancy and maternity and marital status and civil partnership is not expressly protected.

Direct discrimination – perceived discrimination

Perceived discrimination is direct discrimination against a person because others think they possess a particular protected characteristic. This already applied to age, race, religion or belief and sexual orientation. Under the Act it is extended to cover disability, gender reassignment and sex. However, perceptive discrimination linked to pregnancy and maternity and marital status and civil partnership is not expressly protected. It applies even if the person does not actually possess that characteristic (that is, discrimination because people assume someone is gay when they are not).

Note: Any unfavourable treatment of a woman related to pregnancy or maternity will be discriminatory anyway so associative and perceived discrimination protection is not needed. With marital and civil partnership discrimination the employee must be married or a civil partner themselves to bring a direct discrimination claim so associative and perceived protection is not covered.


Indirect discrimination

Indirect discrimination occurs where ‘A’ applies to ‘B’ a provision, criterion or practice which applies to everyone, but particularly disadvantages people who share a protected characteristic. In most indirect discrimination claims an employer may attempt to defend, or objectively justify their actions by showing that the provision they adopted was a proportionate means of achieving a legitimate business aim. It is not usually possible to attempt to justify a direct claim in this way (apart from in age discrimination claims).

Indirect discrimination already applied to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership. The Act extends indirect discrimination to cover disability and gender reassignment.

Example

An employer makes changes to a shift system which means that staff who previously finished at 3pm now have to work until 4pm. A mother is not permitted to stay on the old shift system, although she asks to do so because she has to collect her children from school. This employee may be able to claim she has suffered indirect sex discrimination. This is because the shift changes particularly disadvantage women (who have the majority of childcare responsibilities). If the employer can show it acted legitimately and proportionately, taking into account the need of the business, they would be able to objectively justify the shift change.


Indirect discrimination – association

It has always been understood that in order to bring an indirect claim the employee would have to belong to the disadvantaged group.

In a similar example to the one immediately above, a male employee who wanted to avoid a later shift at work so that he could collect his children from school would historically not succeed in an indirect sex discrimination claim. This is because a man would not be able to show that the shift changes statistically disadvantage men (as men do not have the majority of childcare responsibilities).

However it now appears that individuals may be able to bring an indirect discrimination claim (as well as, or instead of an associative claim) in situations where they suffer a disadvantage because of a provision, criterion or practice which is directed at a group with a protected characteristic, even if they fall outside the primary group affected. This means a male employee who is adversely affected by a shift pattern which primarily affects female employees would still be able to bring an indirect claim.


Victimisation

Victimisation has a very specific meaning in discrimination law. It does not just mean singling someone out. Victimisation makes it unlawful for one person to treat another less favourably than they would treat other people because that person has made or supported a complaint or raised a grievance under the Act (or previous legislation), or because they are suspected of doing so. A victimisation claim will arise where some-one is treated less favourably because they:

  • brought discrimination proceedings
  • gave evidence or information in connection with discrimination proceedings
  • otherwise done something which supported discrimination proceedings
  • alleged (in good faith) that someone has contravened the Act (or previous relevant discrimination legislation).

An employee is not protected if they have maliciously made or supported an untrue complaint. However it is sufficient if the employee believes that the victim has done, or intends to do any of the things listed above.

Under the Act there is no longer a need to use a comparator to measure the treatment of the ‘victim’ with another person who has not made or supported a complaint under the Act.

Example

An employee raises a grievance against his manager because he feels that he has been discriminated against because he is gay. One of his colleagues supports him by corroborating what he has said. The complaint is resolved through the organisation’s grievance procedures; however both employees are then given poorer quality work by their manager and as a result earn less commission. Both employees could claim victimisation based on less favourable treatment for raising and supporting a sexual orientation discrimination complaint.


Harassment

Harassment occurs when, for a reason which relates to a person’s age, race, sex, disability, religion or sexual orientation, another person engages in unwanted conduct which may violate the person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Harassment therefore applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. This is because where any unfavourable treatment of a woman related to pregnancy or maternity will be discriminatory anyway, and with marriage and civil partnership apparently there is no evidence that special harassment protection is needed.

Under provisions in the Act the circumstances which constitute harassment have been made even clearer.

Example

A 19 year old employee is frequently humiliated by the predominantly middle aged female work colleagues making references to her youth and lack of experience. She complains to her line manager who does not take the complaint seriously and allows the hostile banter to continue. This would constitute harassment relating to age.

Harassment includes treatment which creates an offensive environment for an employee even though it is not directed at them at all. Currently it is made clear that:

  • harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership
  • employees can complain of behaviour that they find offensive even if it is not directed at them
  • complainants need not possess the relevant protected characteristic themselves
  • employees are protected from harassment because of perception and association.

Leave a Reply