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Discrimination in the Workplace

Posted on 18th September, 2018

DiscriminationAs the Saville and Weinstein scandals have so starkly highlighted, certain conduct which may have been considered acceptable at one stage is rightly no longer being tolerated. This and other cultural shifts in what is acceptable behaviour towards people of different ethnicities, or with disabilities, has resulted in increased publicity for equality in the workplace for people of all races, genders, sexual orientation and so on and as a result of this increased awareness, those who face any form of discrimination may feel more empowered to challenge it and more able to do so now that Tribunal fees have been abolished.

It will therefore come as no surprise that the numbers of claims being brought for discrimination in the workplace are on the rise. For example, Tribunal statistics produced by the Ministry of Justice show that in 2014/15 they received 11,048 discrimination claims (age, disability, race, religion, sex & sexual orientation) but in 2017/18 they received 21,373 such claims.

The Equality Act 2010 provides protection against discrimination and other ‘prohibited conduct’ relating to ‘protected characteristics’ which people may possess. It is therefore against the law to discriminate against someone in relation to any of the following: age; sex; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; and sexual orientation.

The types of ‘prohibited conduct’ are: direct discrimination; indirect discrimination; discrimination arising from disability; failure to make reasonable adjustments for a disabled person; discrimination in relation to gender reassignment and absence from work; pregnancy and maternity discrimination; harassment in relation to one of the protected characteristics; and victimisation for carrying out a protected act under the Equality Act (i.e. asserting your rights or supporting someone who did and then suffering a detriment).

Remember, that whilst the words and language above such as discrimination, harassment and victimisation have meanings in layman terms their legal definitions are different and certain criteria need to be met for them to be applicable.

The rights under the Equality Act do not just occur during employment but also when applying for jobs; as a consumer; in education; when using public services; when buying or renting property; or as a member or guest of a private club or association. For example in the news recently there is the case of a golfer who uses a prosthesis who is suing a golf club for denying him access to the course (the full article can be read here: https://bbc.in/2MKs8bM).

Discrimination cases in employment tend to centre on issues such as dismissal; recruitment; employment terms and conditions; pay and benefits; promotion and transfer opportunities; training; and redundancy.

Please note that there are certain exemptions/exceptions where employers can treat employees less favourably lawfully. For example, sometimes applicants for a job must have a particular protected characteristic and so can be preferred over other candidates without the particular characteristic.

Both employers and employees can be held responsible and liable for their actions where they discriminate against other employees. Any individual who thinks that they may have been discriminated against at work should promptly raise their concerns with an appropriate person and look to resolve the issue informally where possible. If things remain unresolved then they can raise a formal grievance, request mediation or talk to a trade union representative, ACAS, or Jacksons Law Firm.

An employer should have policies in place to promote equality and prevent discrimination at work as well as procedures for handling such complaints about discrimination. Where a situation cannot be resolved then action may be able to be taken in the Employment Tribunal.

Bringing a discrimination claim can be daunting as initially the burden of proof is on the person who is bringing the claim to show that the discrimination took place i.e. they suffered a detriment or were treated less favourably. If the claimant can prove this then the burden shifts and a respondent (usually an employer) must prove that there was a non-discriminatory reason for the treatment, or that discrimination did not take place. Defending such claims can also be daunting with the risk of a large award to the claimant if the case is lost as well as reputational damage.

This is a challenging area of law that is likely to continue to attract interest both in the mainstream media and on social media and due to its complex nature legal advice is recommended. Should you have any questions or concerns regarding discrimination in the workplace then the Employment Team at Jacksons would be happy to assist whether you are an employer or an employee.

If you are concerned about any of the areas covered in this article, please contact Matthew Rowlinson, Employment Solicitor.

E: mrowlinson@jacksons-law.com

T: 0191 2069617

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