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What amounts to Discrimination in the workplace? Suzzanne Gardener explains…

As an employer, you have a responsibility to ensure that you nor your employees or workers discriminate against another person. The consequence of your failure to prevent this could be an unlimited fine in compensation. So; what is discrimination? what constitutes discrimination in an employment context? and what can you do to reduce the risk of it happening within the workplace?

So, what is discrimination?

Discrimination arises where someone is treated less favourably or is put in a less favourable position as a result of a protected characteristic.

Protected characteristics are set out within the Equality Act 2010 as;

(1) Gender re-assignment;

(2) Marriage and Civil Partnerships;

(3) Race

(4) Religion and Belief

(5) Sex

(6) Sexual Orientation

(7) Pregnancy and Maternity

(8) Disability; and

(9) Age

Every person can relate to at least 3 or 4 of the protected characteristics and therefore discrimination can happen to anyone. It is also important to note that an individual can bring a claim for discrimination if they are offended by comments made or actions taken by another which may cause that individual offence, even if they do not share in that protected characteristic. For example: if a colleague makes a racial comment, then a fellow employee may bring a claim for discrimination if they are offended by what has been said even if they are not of that race.

What does discrimination look like?

There are four main types of discrimination; direct discrimination; indirect discrimination; harassment; and victimisation.

Direct Discrimination

Direct discrimination arises where, as a result of a protected characteristic, someone is treated less favourably than someone else who does not have that protected characteristic. For example, if as an employer, you do not offer employment to a candidate because they are disabled, transgender, or pregnant, then you would be directly discriminating against that person. There is no defence for direct discrimination except in circumstances where the direct discrimination is a proportionate means of achieving a legitimate aim within the business.

Indirect Discrimination

Indirect Discrimination arises where there is a provision, or a criteria or practice within a workplace which is applicable to a group of people but where that provision, criteria or practice would have a disproportionate effect on a person with a particular protected characteristic or where it would put an individual at a disadvantage as a result of a protected characteristic. For example, where a group of people are required to work extended hours but this has a disproportionate effect on a female who has childcare responsibilities. Again, the only defence for an employer would be where the provision, criteria or practice is necessary and proportionate for the purpose of the business. It is important that employers look at all available options to them to achieve a legitimate business purpose, in order to ensure that individuals are not indirectly discriminated against.

Disability

In relation to disability, an employer has a statutory duty to make reasonable adjustments within the workplace to assist that employee or worker in carrying out their duties within the business. This is set out within section 20 of the Equality Act 2010. In particular where there is a provision, criteria, practice or physical feature within the premises which puts an individual with a disability at a disadvantage compared to others, then the employer must make reasonable adjustments. This could include installing access ramps, providing larger screens for those with limited visibility, or allowing later starts and earlier finishing times to assist in access to and egress from the property. As an employer it is advisable that any reasonable adjustments are reviewed with the employee or worker from time to time. It is also important that such adjustments are made within the recruitment process to ensure that a candidate with a disability is not at a disadvantage.

Harassment

Harassment under section 26 and section 40 of the Equality Act 2010, is defined as unwanted conduct which is related to a protected characteristic and which creates an unpleasant environment for the employee or worker to which it relates. There does not need to be a rejection by the employee or worker to that unwanted conduct for it to constitute harassment. The three types of harassment are; general harassment; sexual harassment; and submission to or rejection of sexual harassment. Whilst it is usual that harassment arises through a series of incidents, if an isolated incident is of a more serious nature then this could on its own amount to harassment.

Victimisation

Victimisation arises were an employee or worker is treated badly by another person within the workplace as a result of that employee or worker making or supporting a complaint under the Equality Act 2010. For example, where someone has raised a grievance where they feel they have been discriminated against and as a result of raising that grievance they begin to be treated negatively by others.

Consequences of Discrimination

If an employee, a worker or even a candidate for a potential position within the business feels as though they have been discriminated against as a result of one of the protected characteristics, then they can bring a claim against an employer in the Employment Tribunal. Unlike unfair dismissal, there is no qualifying period in which that person has to have been engaged with the business in order to bring a claim, and in fact discrimination can arise right at the beginning of a recruitment process. Any claim however does have to be brought within a 3-month time limit from the date of the discriminatory act taking place.

An employer could face an unlimited fine for a discrimination claim with uncapped compensation for a claimant if they are successful as well as paying the costs of the claimant.

So, how can I protect myself as an employer?

As an employer it is essential that you have policies and procedures in place which set out to your employees and workers what the business expects from them and what they can expect from the business. Policies such as those on Discrimination and Bullying and Harassment should be readily available, usually within the staff handbook, and regular training and updates should be provided to employees in relation to those policies.

At O’Donnell Solicitors our Employment Law team can advise employers on policies and procedures and act on behalf of both employers and employees in relation to all employment law matters. If you require advice then please contact Suzzanne Gardener ([email protected]) or James O’Donnell ([email protected]).