Discrimination Religious, Race, Sex Sexual Orientation, Martial

In this article, we will provide a brief general look at the main points for your consideration of discrimination in employment.  Due to the size of the area of law for discrimination, we will only briefly focus on the main points in this article as a more in-depth analysis of the legal components of the law for discrimination in employment is outside the scope of this article.

What is discrimination in employment?

Discrimination in employment is the treatment of an individual or group of individuals in a different and negative manner from the remainder of the employees due to specific characteristics of the individual or specified group. The Equality Act 2010 contains the provisions concerning discrimination, harassment and victimisation in employment.

The EQA 2010 covers discrimination and harassment in respect of a number of protected characteristics. The protected characteristics are listed in section 4 and defined in sections 5 to 12 of the EQA 2010. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Types of discrimination:

The EQA 2010 provides various types of discrimination and other unlawful conduct that apply to most, if not all, of the protected characteristics. These are direct discrimination, indirect discrimination, harassment, victimisation, and instructing, causing, inducing and helping discrimination.

Direct Discrimination:

Direct discrimination is defined as occurring under section 13(1) of the EQA 2010 where “because of a protected characteristic, A treats B less favourably than A treats or would treat others.” An employee claiming direct discrimination should show that they have been treated less favourably than a real or hypothetical comparator whose circumstances other than the protected characteristic are not materially different from their own. It should be noted that the exception to this is pregnancy or maternity as formal comparators are not required as a result of European case law. The less favourable treatment that the employee receives must be because of the protected characteristic but the discrimination does not need to be because of the protected characteristic. Less favourable treatment, therefore, because of an employee’s association with someone who has a protected characteristic is covered by the EQA 2010.

Where an employee is wrongly perceived to have a protected characteristic, this will also be protected against any less favourable treatment they receive for the incorrect perception. It should be noted that it is not direct discrimination to treat a disabled person more favourably than a person who is not disabled or to afford a woman special treatment due to their pregnancy or childbirth. With the exception of age discrimination cases, direct discrimination cannot be objectively justified. The employer can, however, rely on the exceptions set out in the EQA 2010 that would render direct discrimination lawful.

Indirect Discrimination:

Indirect discrimination covers acts, decisions or policies which are not intended to treat anyone less favourably but in reality have the effect of disadvantaging a group of people with a particular protected characteristic. Where such an action disadvantages an individual with a protected characteristic, it will amount to direct discrimination unless it can be objectively justified.

The statutory definition of indirect discrimination is found in section 19 of the EQA 2010, which is that A applies to B a provision, criterion or practice (“PCP”), B has a protected characteristic, A also applies or would apply that PCP to persons who do not share B’s protected characteristic, the PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others, the PCP puts or would put B to that disadvantage and A cannot show the PCP to be a proportionate means of achieving a legitimate aim.

As indirect discrimination is group based, the PCP must put persons who share a protected characteristic at a particular advantage. To identify a group disadvantage, a pool for comparison is therefore often identified that will contain both the persons who are disadvantaged as well as persons who are not disadvantaged. Further to this, the PCP that puts, or would put, members of a protected group at a particular disadvantage, must also put, or would put, the claimant to that disadvantage.

Objective justification:

An employer whom acts in an ostensibly discriminatory manner may avoid liability if it can demonstrate that its actions were a proportionate means of achieving a legitimate aim. For indirect discrimination, where a PCP puts persons with a protected characteristic at a particular disadvantage, the PCP will not be indirectly discriminatory if the employer can show that the PCP is objectively justified. For direct discrimination, generally, it is not justifiable. Where a claimant was shown less favourable treatment because of age, this can be potentially justified. For discrimination arising disability, the discrimination must be objectively justified as a proportionate means of achieving a legitimate aim.

It should be noted that the burden is on the employer to prove justification and it will be at the discretion of the Tribunal as to whether the treatment will be deemed justified. Further to this, the employer will need to show that it had a legitimate aim, which corresponds to a real business need and that its actions were a proportionate means of achieving that legitimate aim.

Harassment:

Section 26 of the EQA 2010 contains three definitions of harassment, which are the general definition relating to protected characteristics (other than marriage and civil partnership, and pregnancy or maternity), conduct of a sexual nature and less favourable treatment because of an employee’s rejection or submission to a harassment of a sexual nature or harassment related to sex or gender reassignment.

The definition for general harassment is contained in section 26(1) of the EQA 2010 and provides that A harasses B if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating B’s dignity, or, creating an intimidating, hostile, degrading, humiliating or offensive environment for B. B’s perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect will all be considered when determining whether the conduct is to be regarded as having the required effect.

For conduct of a sexual nature, under section 26(2) of the EQA 2010, A harasses B if A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect referred to in the general definition of harassment as detailed above.

Under section 26(3) of the EQA 2010 for rejection of or submission to harassment, A harasses B if:

  1. A or another person engages in unwanted conduct that is of a sexual nature or that relates to gender reassignment or sex;
  2. The conduct has the purpose or effect referred to in the general definition of harassment as set out above; or
  3. Because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

Victimisation:

Where an employee does or might do, protected acts, such as bringing discrimination claims, complaining about harassment, or becoming involved in another employee’s discrimination complaint, the EQA 2010 contains provisions to protect the employee from victimisation. Section 27(1) of the EQA 2010 provides that victimisation occurs where A subjects B to a detriment because either B has done a protected act or A believes that B has done, or may do, a protected act.

Section 27(2) of the EQA 2010 lists the following as protected acts:

  1. Bringing proceedings under the EQA 2010 – section 27(2)(a);
  2. Giving evidence or information in connection with proceedings under the EQA 2010 – section 27(2)(b);
  3. Doing any other thing for the purpose of or in connection with the EQA 2010 – section 27(2)(c); and
  4. Alleging, whether expressly or otherwise, that A or another person has contravened the EQA 2010 – section 27(2)(d).

In addition to the above, Article 8 of the Equality Act 2010 (Commencement No 4, Savings, Consequential, Transitional, and Incidental Provisions and Revocation) Order 2010 (SI 2010/2317) (“the Order”), supplements section 27 and provides that the following will each amount to a protected act for the EQA 2010 victimisation provisions:

  1. Bringing proceedings under a previous enactment;
  2. Giving evidence or information in connection with a previous enactment;
  3. Doing any other thing for the purposes of or in connection with a previous enactment; and
  4. Alleging, whether expressly or otherwise, that another person has contravened a previous enactment.

Furthermore, section 77(4) states that the following are to be treated as protected acts for victimisation purposes:

  1. Seeking a disclosure that would be a relevant pay disclosure;
  2. Making or seeking to make a relevant pay disclosure; and
  3. Receiving information disclosed in a relevant pay disclosure.

Instructing, causing, inducing or knowingly helping unlawful acts:

Section 111 of the EQA 2010 provides that A must not:

  1. Instruct B to do in relation to C anything that contravenes the Act – section 111(1);
  2. Cause B to do in relation to C anything that contravenes the Act – section 111(2); or
  3. Induce B, whether directly or indirectly, to do in relation to C anything that contravenes the Act – section 111(3) and (4).

Who does the law protect:

It is important to note that actions that fall within the statutory definitions of discrimination, harassment or victimisation as set out above, are not necessarily unlawful. In order for these actions to give rise to a claim in the Employment Tribunal, the actions must be covered by Part 5 of the EQA 2010. Part 5 of the EQA 2010 concerns discrimination in the workplace. If an action takes place that does not fall within the defined workplace under section 5 of the EQA 2010, it will not give rise to a claim in the Employment Tribunal. Part 5 of the EQA 2010 protects a wide range of individuals and include the following:

  • Employees and applicants;
  • Contract workers;
  • The police;
  • Partners;
  • LLP Members;
  • Barristers;
  • Advocates;
  • Office holders;
  • Professional or trade qualifications;
  • Vocational training and employment agencies;
  • Trade organisations; and
  • Local authority members.

The Exceptions:

An employer can have under certain circumstances, a defence to an act of direct, combined or indirect discrimination that would otherwise be unlawful. The following exceptions apply to the majority of the various discrimination strands but there are also a number of exceptions set out in the EQA 2010 that are specific to one protected characteristic:

  1. Occupational requirements;
  2. Positive action;
  3. Statutory provisions;
  4. National security; and
  5. Providing benefits to the public.

How we can help:

T G Baynes have an experienced civil litigation department that has experience dealing with contentious employment matters, which include claims of discrimination. If you are an employee or an employer that has an issue with regards to discrimination, please do not hesitate to contact us.