Discrimination at Work: The Key Issues For Employees and Contract Workers

Blog

2 May, 2018

The Equality Act 2010 (EqA), which came into force on 1 October 2010, consolidates the previous discrimination legislation in Great Britain concerning sex, race, disability, sexual orientation, religion or belief and age.

The EqA is concerned with discrimination in respect of certain characteristics:

age (i.e. a particular age group or persons of the same age group);
disability (i.e. a physical or mental impairment which has a substantial and long-term adverse affect on a person’s ability to carry out normal day-to-day activities);
gender reassignment (i.e. a person proposing to undergo, is undergoing or has undergone a process, or part of a process, for the purpose of reassigning their sex by changing physiological or other attributes of sex);
marriage and civil partnership (i.e. a person who is married or is a civil partner);
pregnancy and maternity (i.e. a woman who is pregnant or relating to maternity leave);
race (i.e. colour, nationality, ethnic or national origins);
religion or belief (i.e. any religion including a lack of religion and any religious or philosophical belief including a lack of belief);
sex (i.e. man or a woman or persons of the same sex); and
sexual orientation (i.e. a person’s sexual orientation towards persons of the same sex, opposite sex or of either sex);

collectively referred to as Protected Characteristics.

The regime concerning discrimination in employment set out in the EqA takes a consistent approach across the Protected Characteristics where possible.

The EqA prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services and in the disposal or management of premises.

The EqA applies to women and men of any age, including children.

The employment provisions of the EqA apply to all employers and employees.

The EqA also protects people who are not “employees” in the sense required for some other employment rights, such as the right not to be unfairly dismissed. It protects people engaged under a contract personally to execute work or labour. Contract workers whose labour is supplied by their employer to another person (the principal) are protected.

An illegal contract of employment or illegal conduct of the employee is no bar to bringing a claim under the EqA, unlike an unfair dismissal claim.

Employees (and potential employees) have rights under the EqA whatever their length of employment and whatever hours they work.

Under previous discrimination legislation, protection against discrimination was limited to “employment…at an establishment in Great Britain.” Comparably, the EqA is silent on its territorial scope, leaving it for the tribunals to decide whether employees who work wholly or mainly abroad are protected.

What does the EqA cover?

Under the EqA, there are 4 primary forms of unlawful discrimination: direct discrimination, indirect discrimination, harassment and victimisation.

There are also additional forms of discrimination such as perception discrimination, associative discrimination, discrimination relating to a disability and a failure to make reasonable adjustments as well as discrimination because of gender reassignment or pregnancy and maternity.

Direct discrimination

This occurs where a person is treated less favourably because of one or more of that person’s protected characteristics and that person suffers a detriment. In other words, direct discrimination occurs where someone is put at a disadvantage on discriminatory grounds in relation to his/her employment. This may occur even when unintentional.

Detriment means treatment of a kind that a reasonable person would or might take the view that in all the circumstances s/he had been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.

For the purposes of establishing direct discrimination, it does not matter whether or not the discriminator has the protected characteristic in question. Therefore, it is no defence to a direct discrimination claim that the alleged discriminator shares the same protected characteristic of the victim.

Direct discrimination cannot be justified (see ‘Exceptions’ below).

Examples of direct discrimination:

A woman with young children fails to obtain a job because it is feared that she might be an unreliable member of staff.
An employer believes that someone’s memory deteriorates with age. He assumes – wrongly – that a 60-year old manager in his team can no longer be relied on to undertake her role competently. An opportunity for promotion arises which he does not mention to the manager. The employer’s conduct is influenced by a stereotyped view of the competence of 60 year olds.
A Pakistani applicant for a senior post is not appointed because he might not “fit in” with the existing (all white) team.
During an interview, a job applicant informs the employer that he has multiple sclerosis. The applicant is unsuccessful and the employer offers the job to someone who does not have a disability on the assumption that the disabled job applicant cannot carry out the job.
Whilst being interviewed, a job applicant says that she has a civil partner. Although she has all the skills and competencies required of the jobholder and performs exceptionally well at interview, the company decides not to offer her the job because she is a lesbian.
A Catholic employer refuses to employ a worker because she is not Catholic.

Exceptions:

If the protected characteristic is age, a person will not be discriminated against if the discriminator can show that the less favourable treatment is a proportionate means of achieving a legitimate aim.
If the protected characteristic is disability, and the complainant is not a disabled person, direct disability discrimination does not occur if the alleged perpetrator treats disabled persons more favourably than persons not disabled.
If the protected characteristic is marriage and civil partnership, less favourable treatment occurs only if the complainant is married or is a civil partner.
If the protected characteristic is race, less favourable treatment includes segregating the complainant from others.
If the protected characteristic is sex, less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding; and in the case where the complainant is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.

Indirect discrimination

This occurs when an employer applies an apparently neutral ‘provision, criterion or practice’ (PCP) which puts workers sharing a protected characteristic at a particular disadvantage and it is not a proportionate means of achieving a legitimate aim, irrespective of the protected characteristic, to apply that PCP.

To establish justification, the employer will need to show that its actions or PCP are a proportionate means of achieving the legitimate aim identified. The actions or PCP must be reasonably necessary to achieve that aim. Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of the employer; there is no margin of appreciation.

In determining whether there has been a detriment, it will be necessary to establish a “pool” of people for comparison on a like-for-like basis of those that have and have not been affected by the PCP.

Indirect discrimination is unlawful whether it is intentional or not.

Examples of indirect discrimination:

A bus company adopts a policy that all female drivers must re-sit their theory and practical tests every 5 years to retain their category D licence;
An employer advertises a position requiring at least 5 GCSEs at grades A to C without permitting any equivalent qualifications. This criterion would put at a particular disadvantage everyone born before 1971, as they are more likely to have taken O level examinations rather than GCSEs.
A hairdresser refuses to employ stylists who cover their cover, believing it important for them to exhibit their flamboyant haircuts. Accordingly, Muslim women and Sikh men who cover their hair would be placed at a particular disadvantage.
A PCP that all employees must work over the Christmas period. This would have an adverse impact on Christians.
A PCP that all employees work full-time hours. This would have a disparate adverse impact on more women with young children than men as women are generally accepted as taking the primary childcare role.
An employer starts an induction session for new staff with an ice-breaker designed to introduce everyone in the room to the others. Each worker is required to provide a picture of themselves as a toddler. One worker is a transsexual woman who does not wish her colleagues to know that she was brought up as a boy. When she does not bring in her photo, the employer criticises her in front of the group for not joining in.
An airline operates a dresscode which forbids workers in customer-facing roles from displaying any item of jewellery. A Sikh cabin steward complains that this policy indirectly discriminates against Sikhs by preventing them from wearing the Kara bracelet.

Discrimination by perception

It is direct discrimination if an employer treats a worker less favourably because the employer mistakenly thinks that the worker has a protected characteristic. However, this does not apply to pregnancy and maternity or marriage and civil partnership.

Examples of discrimination by perception:

An employer rejects a job application form from a white woman whom he wrongly thinks is black because the applicant has an African-sounding name. This would constitute direct race discrimination based on the employer’s mistaken perception.
A masculine-looking woman applies for a job as a sales assistant. The sales manager thinks that she is transsexual because of her appearance and does not offer her the job, even though she performed the best at interview. The woman would have a claim for direct discrimination because of perceived gender reassignment even though she is not in fact transsexual.

Discrimination by association

It is direct discrimination if an employer treats a worker less favourably because of the worker’s association with another person who has a protected characteristic; however, this does not apply to marriage and civil partnership or pregnancy and maternity.

Examples of discrimination by association:

A manager treats a worker (who is heterosexual) less favourably because she has been seen out with a person who is gay.
An employer does not short-list an internal applicant for a job because the applicant – who is not disabled himself – has helped to set up an informal staff network for disabled workers. This could amount to less favourable treatment because of disability.
A lone father caring for a disabled son has to take time off work whenever his son is sick or has medical appointments. The employer appears to resent the fact that the worker needs to care for his son and eventually dismisses him. The dismissal may amount to direct disability discrimination against the worker by association with his son.

Discrimination arising from disability

The occurs where a person is treated less favourably because of something arising in consequence of that person’s disability and it is not a proportionate means of achieving a legitimate aim.

So long as the unfavourable treatment is because of something arising in consequence of the disability, it will be unlawful unless it can be objectively justified, or unless the employer did not know or could not reasonably be expected to know that the person was disabled.

Example of discrimination arising from disability:

A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. The treatment is because of something which arises in consequence of the worker’s disability, namely her loss of temper.
There is a connection between the “something” (i.e. loss of temper) that led to the treatment and her disability. It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker.

Failure to make reasonable adjustments

The EqA, like the DDA, imposes a duty on employers to make reasonable adjustments to premises or working practices to help disabled job applicants and employees. A failure to comply with this duty to make reasonable adjustments is a form of discrimination.

The duty can arise in three circumstances:

1.where A’s PCP puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, A must take such steps as it is reasonable to have to take to avoid the disadvantage;

2.where a physical feature puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, A must take such steps as it is reasonable to have to take to avoid the disadvantage; and

3.where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled, A must take such steps as it is reasonable to have to take to provide the auxiliary aid.

The EqA provides that where (1) or (3) relates to the provision of information, the steps which it is reasonable to take include steps for ensuring that the information is provided in an accessible format.

The duty to make reasonable adjustments only arises where the employer or service provider knows or ought reasonably to know of the disabled person’s disability and of the substantial disadvantage at which the person is placed.

Employers and service providers are under a duty to make reasonable adjustments to customers, clients and prospective workers or employees with a disability where a provision, criterion or practice applied by an employer, places the disabled person at a substantial disadvantage.

The duty to make reasonable adjustments applies, e.g. to selection and interview procedures and the premises used for such procedures, as well as to job offers, contractual arrangements and working conditions.

Failure to make reasonable adjustments cannot be justified.

Service providers are under a duty to make reasonable adjustments to customers, clients and prospective workers or employees with a disability where any physical feature of the premises occupied by an employer/organisation, places the disabled person at a substantial disadvantage.

The EqA envisages reasonable adjustments being made in the following ways:

changes to policies, practices and procedures;
providing auxiliary aids and services; and
overcoming barriers caused by physical features.

When considering if services are unreasonably difficult for disabled people to use, service providers should take account of whether the time, inconvenience, effort, discomfort or loss of dignity entailed in using the service would be considered unreasonable by other people if they had to endure similar difficulties.

Gender reassignment discrimination

This occurs where a transsexual person is treated less favourably because they are absent and the reason for that absence is that they propose to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of changing physiological or other attributes of the particular person’s sex.

Pregnancy and maternity discrimination

This occurs where during the “protected period” a person is treated less favourably because of:

their pregnancy;
illness relating to their pregnancy;
compulsory maternity leave;
ordinary maternity leave (OML); and
additional maternity leave (AML).

The “protected period” is triggered from when the pregnancy begins and normally ends after OML or AML has finished.

Harassment

Harassment occurs where a person engages in unwanted conduct:

related to the victim’s Protected Characteristic; or
relating to another person’s Protected Characteristic; or
of a sexual nature; or
relates to gender reassignment or of a sexual nature because of that person’s rejection of or submission to that conduct, and
- the conduct has the purpose or effect of either: violating the victim’s dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for him/her.

In determining whether conduct has the necessary ‘effect,’ each of the following must be taken into account:

the victim’s perception;
the other circumstances of the case; and
whether it is reasonable for the conduct to have that effect.

Victimisation

This occurs where an individual is treated less favourably than another individual whose circumstances are the same because s/he has taken action to assert their statutory rights or assisted a colleague with information in that regard under the EqA and that individual suffers a detriment, in that s/he:

brought proceedings against the discriminator under the EqA; or
gave evidence or information in connection with proceedings brought by any person against the discriminator under the EqA; or
alleged that the discriminator or any other person has committed an act that (whether or not the allegation so states) would amount to a contravention of the EqA.

There is no protection if a person makes allegations or gives evidence which they know to be false but a person who complains mistakenly but in good faith is protected.

When does the EqA apply?

It applies to unlawful discrimination before, during and after employment.

During employment, it is unlawful for an employer to discriminate against a person:

in the terms of employment it offers to that person;
in the opportunities it provides that person for promotion, transfer, training or benefits; or
by dismissing that person or subjecting them to any other detriment.

If an employer discriminates against somebody after employment, e.g. by refusing to provide them with a reference, this will also be contrary to the EqA.

There are special provisions prohibiting discrimination:

by firms against partners or potential partners;
by trade unions and employers’ organisations against members or potential members;
by authorities or bodies in conferring authorisations or qualifications needed for or facilitating engagement in a particular profession or trade;
by people providing vocational training
by employment agencies
by or in relation to barristers or advocates.

An employer will be liable for the actions of its employees unless it can show that it took steps that were reasonably practicable to prevent employees from doing the discriminatory acts.

An employer may be able to justify a claim of direct discrimination if it can show that the individual’s race was ‘a genuine occupational qualification’ for the job in question in respect of:

who should be offered the job; or
in refusing to employ the individual.

Burden of proof

It will be for an employee or worker to prove facts from which a tribunal can conclude in the absence of an adequate explanation that the employer has committed an act of discrimination unless the employer proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act.

Remedies

Employees, workers or job applicants who believe their employer (or another employee) has discriminated against them can bring a claim in the employment tribunal.

Tribunals and courts can award unlimited compensation, which can include an award for injury to feeling and financial losses as a result of the discrimination.

Tribunals and courts may also make a recommendation that an employer take specified action within a certain time in order to reduce the discriminatory affect.

Time limits

A claim under the EqA relating to employment must be brought before an employment tribunal within 3 months (i.e. 3 months less 1 day) of the complaining act. This can be the last act in a series of acts over a period of time. The time limit is a strict one and will only be extended in certain circumstances.

Codes of practice

The Equality and Human Rights Commission’s Code of Practice on Employment provides guidance and recommends good practice to employers with regard to eliminating discrimination in employment.

The Code is not compulsory. However, it is advisable to follow the Code.

What should employers be doing?

Employers should have an equal opportunities policy and a harassment policy and provide training to both employees and management on such policies and the implications for them and their treatment of others.

Contact our employment law solicitors for advice

If you have any questions about anything employment discrimination claims for employees and contractor workers, or for advice about employment law generally, please contact us on 03456 381381, or email enquiries@ibblaw.co.uk.