Discrimination Issues

With recent changes that have placed limitations on when claims for unfair dismissal can be pursued, it is now more likely that discrimination claims will be pursued by employees. This is often because there is no cap on awards of compensation for discrimination and employees do not need to be employed for two years (as they do in normal unfair dismissal claims) in order to bring a claim.

Discrimination is governed by the Equality Act 2010, which consolidated the existing legislation and introduced some new law.

It firstly applies by setting out nine “protected characteristics”. It is against these characteristics that you cannot discriminate:

  • Sex
  • Age
  • Race
  • Religion/Belief
  • Pregnancy/Maternity
  • Sexual Orientation
  • Marriage/Civil Partnership
  • Disability
  • Gender Reassignment

Against each of these there are various acts of discrimination that are deemed unlawful, including:

  • Direct discrimination
  • Indirect discrimination
  • Victimisation
  • Harassment
  • Disability related discrimination
  • Duty to make reasonable adjustments for disabled persons
  • Discrimination by way of association
  • Perception discrimination

With discrimination it is important to remember that, as an employer, you have a “statutory defence” that allows you to defend any claims for discrimination in certain circumstances. However, this requires you to show that you have taken all reasonable steps to prevent discrimination in the workplace. The main steps you will need to take to satisfy this test are that you have appropriate (and up to date) policies governing things like equality, diversity, harassment, bullying etc. Further, you need to show that you have complied with these policies and undertaken appropriate training to implement the polices and highlight to your staff the fact that discrimination is not acceptable in the workplace. Your training should stress the duties of your managers to avoid discrimination at work.

In the absence of these preventative steps you are at greater risk of discrimination claims. One area where specific advice is often required is with disability discrimination and the special issues this creates for employers given the additional obligations to make reasonable adjustments and the further test of disability related discrimination.

In the case of indirect discrimination, liability may be avoided if you can “objectively justify” your actions. This is where you can show that your act/omission was a “proportionate means of achieving a legitimate aim”. We will be able to advise you as to whether this applies and, if so, the test you will need to satisfy to use such a defence. A common example relates to requests for flexible working from mothers returning from maternity leave. A refusal of such a request is potentially indirect sex discrimination. However, depending on the circumstances you may have an objective justification defence and our employment lawyers will be able to assess the risks and advise in this area.

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