‘the true measure of any society can be found in how it treats its most vulnerable members’ Mahatma Gandhi
Colloquially, people use the term ‘discrimination’ to refer to less favourable treatment. In law, the prohibited conduct can be wider than that, however, discrimination only occurs where it relates to one or more of the protected characteristics in the Equality Act 2010.
- Disability (which includes both physical and mental impairments)
- Gender reassignment
- Marriage and civil partnership Pregnancy and maternity
- Race (including colour, nationality and ethnic or national origin) Religion or belief
- Sexual orientation
Types of Discrimination
There are four main forms of discrimination:
1. Direct discrimination: where A treats B less favourably because of a protected characteristic;
For example: failing to offer promotion opportunities to a woman who is equally as qualified and experienced as a male colleague who is offered promotion is direct sex discrimination.
2. Indirect discrimination: where A applies to B a provision, criterion or practice which puts B at a particular disadvantage compared with persons with whom B does not share a protected characteristic, and the provision, criterion or practice cannot be objectively justified;
For example: a requirement to work on Sundays may put Christian employees, who hold a belief that Sunday is a day of rest, at a disadvantage because of their religious belief.
3. Harassment: where A engages in unwanted conduct related to a protected characteristic which has
the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B;
For example: Sexist or racist remarks, unwanted touching (putting an arm around someone or trying to kiss someone) are examples of harassment.
4. Victimisation: where A subjects B to a detriment because B has (or A believes B has or may) brought proceedings under the Equality Act 2010, given evidence or information in connection with proceedings under the Act, done any other thing for the purposes of or in connection with the Act, or made an allegation that A or another person has contravened the Act.
For example: where an employee raises a grievance that he feels he has been discriminated against at work because his employer won’t provide an ergonomic chair to accommodate his spinal disability and the employer then considers him a troublemaker and doesn’t give him a pay rise which is given to the rest of the workforce.
Someone is disabled if “they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out day to day activities.” Disability discrimination has two further forms of discrimination:
- discrimination arising from disability (for example: receiving a warning for unacceptable levels of absence under a Sickness Absence policy in relation to absences caused by a disability) and
- failure to comply with a duty to make reasonable adjustments (for example: failing to provide a desk and chair at a suitable height to accommodate an employee’s disability or insisting that an employee starts work early in the morning instead of adjusting his start time to a later time in the day to accommodate a disability which makes early mornings difficult for him)
When managing sickness absence employer should always be alive to the risk of disability discrimination.
Recruitment and performance management are processes which can give rise to inadvertent disability and age discrimination.
In the context of coronavirus, lockdowns, self-isolation, furlough and working from home, it is likely that many workers are suffering from poor mental health which may, in some circumstances, amount to a disability under the Equality Act 2010, creating additional concerns for employers as we return to the workplace and to some form of ‘normal life’. Early Occupational Health reports are recommended.
Vaccinations and returning to the workplace
Vaccinations and returning to the workplace are other areas where the potential for discrimination arises, for example where a disabled worker is treated less favourably (for example in the non-payment of company sick pay if he has to self-isolate because a close contact has the virus) because they cannot receive the vaccine or a female worker is disadvantaged compared with male colleagues because she is unable to work late due to childcare responsibilities (see Dobson v North Cumbria Integrated Care NHS Foundation Trust https://www.bailii.org/uk/cases/UKEAT/2021/0220_19_2206.pdf which says that a Tribunal must apply the child care disparity principle when considering such cases ‘in that women still shoulder the majority of child care responsibilities).
An employer may be able to defend indirect discrimination (and age and disability direct discrimination) claims by showing that the treatment was objectively justified. I.e. that the treatment was a proportionate means of achieving a legitimate aim.
It is important for employers to identify their legitimate aim at the outset (rather than retrospectively). Employers must ensure that the treatment of the employee is a proportionate means of achieving that aim, and that it couldn’t be achieved by other means which didn’t involve less favourable treatment of the employee concerned or had less impact on the employee concerned.
For claims issued after 1st April 2021 the amount of compensation an employee may be awarded for injury to feelings increases as follows:
- Lower band (less severe cases) £900 – £9,100
- Middle band (moderately severe cases) £9,100 – £27,400 Upper band (most severe cases) £27,400 – £45,600
- Exceptional cases may attract awards in excess of £45,600.
Compensation may also be awarded for loss of earnings (without an upper cap) amongst other things.
Discrimination is a particularly fertile area of Employment Law where employers can quickly and unintentionally find themselves in difficulty. It makes sense to take legal advice before you make changes to a way of working which could have a disparate impact on a section of the workforce. Or take a decision which may be perceived differently by someone because of their (or even another person’s) protected characteristic.
For more information on Discrimination, please contact a member of the Employment Team.