Employers should ensure no one is treated less favourably, harassed or victimised because of their age, disability, gender reassignment, marriage & civil partnership, pregnancy & maternity, race, religion or belief, sex or sexual orientation (“the protected characteristics”).
If a discrimination case succeeds the compensation monies are uncapped. Therefore employers may find they pay a hefty fine for not having the correct policies and monitoring procedures in place.
Types of discrimination
- Direct discrimination: This is where an employee or worker or prospective employee or worker is treated less favourably because of their protected characteristic e.g. an Asian woman with more experience is passed over for promotion, and her male colleague with less experience is promoted.
- Indirect discrimination: This is where a provision, criterion or practice (usually a policy) applicable to everyone, but which causes disadvantage to one group over another, and there is no objective justification for it. For example changing shift patterns which causes female workers problems managing their childcare responsibilities.
- Failure to make reasonable adjustments: The Equality Act 2010 imposes a duty on employers to make reasonable adjustments for disabled employees and workers. This duty is comprised of three specific requirements:
- Where a provision, criterion or practice (see above) of an employer puts a disabled person at a disadvantage in comparison with persons who are not disabled, that employer must take reasonable steps to avoid that disadvantage.
- Where a physical feature puts a disabled person at a disadvantage in comparison with persons who are not disabled, that employer must take reasonable steps to avoid that disadvantage.
- Where a disabled person would be put at a substantial disadvantage in comparison with persons who are not disabled but for the provision of an auxiliary aid, the employer must take reasonable steps to provide that aid.
- A failure by an employer to comply with any of the above requirements is a failure to make reasonable adjustments and so an act of disability discrimination.
- Harassment: In general terms this is unwanted conduct which has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This can be bullying which is violent or obvious as well as teasing, nicknames, jokes, or other behaviour which is not done with malicious intent but which is upsetting.
- Discrimination arising from disability: An employer should not treat a disabled person unfavourably. This is a new concept introduced by the Equality Act 2010 and tribunals are likely to treat ‘unfavourable treatment’ in a similar way to the existing concept of "detriment", which requires that a reasonable worker would or might take the view that he or she had been disadvantaged.
- Victimisation, this is where a person receives less favourable treatment compared to others because they have either brought (or given evidence in) an Employment Tribunal, or raised a grievance alleging discrimination in relation to the protected characteristics.
- The Act also provides for ‘vicarious liability’ provisions, making an employer responsible for the acts of their employees.
Is there a qualifying service requirement for a discrimination claim?
An employee or worker does not require a qualifying service to bring a claim for discrimination on protected characteristics.
Is there a defence for a discrimination claim?
Providing that you can show a tribunal that you have taken all reasonable steps to prevent your employees and workers from conducting themselves in a manner which would amount to discrimination (see above), you would be able to rely on this as a defence.
You will only succeed in this defence if you have equality and diversity, grievance and equal opportunity policies in place and you ensure that management receive equality and diversity training (ideally every 12 months).
If an employee or worker succeeds in a claim for disability discrimination, the Employment Tribunal (ET) has the power to order the payment of compensation. The award would normally comprise of two elements: injury to feelings and loss of earnings.
Further the ET has the jurisdiction to award damages for personal injury and make recommendations that an employer takes specific action, within a specified period.
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