HAVE YOU BEEN UNLAWFULLY DISCRIMINATED AGAINST AT WORK? The following notes are for guidance only and are not intended to replace formal legal advice.

Transcription

1 HAVE YOU BEEN UNLAWFULLY DISCRIMINATED AGAINST AT WORK? The following notes are for guidance only and are not intended to replace formal legal advice. The protected characteristics The Equality Act 2010 (EqA 2010) is concerned with discrimination and harassment in respect of the following "protected characteristics", which are listed in section 4 and defined in sections 5 to 12: Age Disability (dealt with in separate note) Gender reassignment Marriage and civil partnership Pregnancy and maternity (dealt with in separate note) Race Religion of belief Sex Sexual orientation Types of discrimination There are various types of discrimination and other unlawful conduct set out in the EqA 2010 that apply to most (and in some cases all) of the protected characteristics: Direct discrimination Indirect discrimination Harassment Victimisation Instructing, causing, inducing and helping discrimination

2 Direct discrimination Direct discrimination occurs where "because of a protected characteristic, A treats B less favourably than A treats or would treat others" (section 13(1), EqA 2010). Key points The key points to note about direct discrimination in employment under the EqA 2010 are: An employee claiming direct discrimination should show that they have been treated less favourably than a real or hypothetical comparator whose circumstances (other than the existence of the protected characteristic) are not materially different to theirs. The exception to this is pregnancy or maternity discrimination where, because of European case law, formal comparators are not required. The less favourable treatment must be because of a protected characteristic. Less favourable treatment because of an employee's association with someone who has a protected characteristic is covered (except in marriage or civil partnership cases). For example, a non-disabled employee might bring a direct disability discrimination claim where they have been treated less favourably because they have a disabled child. An employee who is wrongly perceived to have a protected characteristic (other than marriage or civil partnership) will be protected against less favourable treatment they receive for that reason. For example, a Sikh employee might bring a direct religious discrimination claim where they have been treated less favourably because the employer wrongly believes that they are Muslim. It is not direct discrimination to treat a disabled person more favourably than a person who is not disabled, or to afford women special treatment in connection with pregnancy or childbirth. Other than in age discrimination cases, direct discrimination cannot be objectively justified. However, an employer might be able to rely on exceptions in the EqA 2010 that, if applicable, will render direct discrimination lawful. For example, it could argue that a male job applicant was not appointed because being female was an "occupational requirement" for the job; or that a black employee was assisted within the terms of the Act's "positive action" provisions.

3 Indirect discrimination Indirect discrimination is concerned with acts, decisions or policies (broadly speaking) which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic. Where such an action disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified. The statutory definition of indirect discrimination is found in section 19 of the EqA 2010, under which A discriminates against B where: A applies to B a provision, criterion or practice (PCP). B has a protected characteristic. A also applies (or would apply) that PCP to persons who do not share B's protected characteristic. The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others. The PCP puts or would put B to that disadvantage. A cannot show the PCP to be a proportionate means of achieving a legitimate aim. A classic example is an employer requiring an employee to work full time. This requirement could disadvantage women as a group, since women in society as a whole bear a greater part of domestic and childcare responsibilities than men and are more likely to want (or need) to work part time. Unless the employer can objectively justify the need for a full-time worker to do the job, the requirement could be indirectly discriminatory against a woman with childcare responsibilities. Key points The key points to note about indirect discrimination in employment under the EqA 2010 are: There is no explicit provision for indirect pregnancy or maternity discrimination, so this will continue to be dealt with under the protected characteristic of sex. An indirect discrimination claim must point to a PCP applied by the employer. "PCP" has a fairly wide meaning: an employer's action can be challenged in an indirect discrimination context even where there is no formal policy in place.

4 Indirect discrimination is "group based": the PCP must put persons who share a protected characteristic at a particular disadvantage. To identify a group disadvantage, a pool for comparison is often identified, containing both persons who are disadvantaged and persons who are not. The pool will depend on the nature of the PCP being tested. If the claimant is challenging a recruitment policy, for example, the pool will usually comprise those people who would be eligible for the job but for the policy in question. On the other hand, if a claimant is challenging a practice or policy applied throughout the employer's organisation, then the pool might be the whole workforce. The PCP that puts (or would put) members of the protected group at a "particular disadvantage" must also put (or would put) the claimant to that disadvantage. An employer will avoid liability for indirect discrimination if it can demonstrate that the PCP is objectively justified; that is, that the PCP is a "proportionate means of achieving a legitimate aim". Objective justification In relation to some discrimination claims, an employer which acts in an ostensibly discriminatory manner can avoid liability by showing that its actions were a proportionate means of achieving a legitimate aim. This is known as "objective justification". Under the EqA 2010, an employer can rely on the objective justification defence in response to the following claims: Indirect discrimination. Where a PCP puts persons with a protected characteristic at a particular disadvantage, the PCP will not be indirectly discriminatory if the employer can show that it is objectively justified. Direct age discrimination. Generally, direct discrimination is not justifiable. However, where a claimant has shown less favourable treatment because of age, this can potentially be justified. Discrimination arising from disability. Discrimination arising from disability must be objectively justified as a proportionate means of achieving a legitimate aim. Key points The key points to note about objective discrimination under the EqA 2010 are: The burden is on the employer to prove justification, and it is for the tribunal to reach its own decision as to whether the treatment was justified. It should

5 not allow the employer a "margin of discretion" or apply a "band of reasonable responses" test similar to that found in unfair dismissal cases. The employer must show that it had a legitimate aim, which corresponds to a real business need. The employer's actions must be a proportionate means of achieving the legitimate aim identified. The tribunal must carry out a balancing exercise to evaluate whether the employer's legitimate business needs are sufficient to outweigh the discriminatory impact on the workforce generally and the claimant in particular, and ask whether the employer's aims could reasonably be achieved by less discriminatory methods. Harassment A harasses B if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: Violating B's dignity, or Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (Section 26(1), EqA 2010.) In deciding whether conduct shall be regarded as having the required effect, the following must be taken into account: B's perception. The other circumstances of the case. Whether it is reasonable for the conduct to have that effect. (Section 26(4), EqA 2010.) General definition: key points The key points to note about the general harassment test under the EqA 2010 are: A one-off incident can amount to harassment: B need not have made A aware that the conduct was unwanted. Conduct can amount to harassment if it is related to a protected characteristic. This can cover, for example: o conduct that, regardless of the form it takes, is by reason of a protected characteristic (for example, shunning a co-worker

6 o because he is gay; because he is perceived to be gay; or because somebody else is gay); and conduct that is otherwise related to a protected characteristic because of the form it takes (for example, engaging in racist or homophobic banter that might offend colleagues regardless of their race or sexual orientation). As with direct discrimination, the EqA 2010 protects an employee against harassment based on someone else's protected characteristic (associative harassment), or based on the perception that the employee has a protected characteristic. To amount to harassment, conduct must have the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Where B claims that the conduct had this effect (although this was not the conduct's purpose), the tribunal must consider whether it was reasonable for the conduct to have that effect. This avoids liability arising where B is "hypersensitive". Conduct of a sexual nature A also harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to above. Rejection of or submission to harassment A also harasses B if: A or another person engages in unwanted conduct that is of a sexual nature or that relates to gender reassignment or sex. The conduct has the purpose or effect referred to above. Because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. Victimisation The EqA 2010's victimisation provisions protect employees who do (or might do) protected acts such as bringing discrimination claims, complaining about harassment, or becoming involved in another employee's discrimination complaint. Victimisation is usually alleged to have been committed by an employer that is already the subject of a discrimination complaint by a current or

7 former employee, but this need not always be the case. For example, a prospective new employer can be liable for victimisation if it refuses to employ someone who has given evidence against a previous employer in a discrimination case. Victimisation occurs where A subjects B to a detriment because either: B has done a protected act. A believes that B has done, or may do, a protected act. (Section 27(1), EqA 2010.) Instructing, causing, inducing or knowingly helping unlawful acts The EqA 2010 also expressly makes it unlawful to instruct, cause, induce or help someone to discriminate against, harass or victimise another person, or to attempt to do so. Under section 111 of the EqA 2010, A must not: Instruct B to do in relation to C anything that contravenes the Act. Cause B to do in relation to C anything that contravenes the Act. Induce B, directly or indirectly, to do in relation to C anything that contravenes the Act. For this to apply, the relationship between A and B must be one in which discrimination, harassment or victimisation is prohibited, such as an employment relationship or other relationship governed by the EqA Unlawful discrimination against job applicants and employees Job applicants and prospective job applicants An employer (A) must not discriminate against or victimise a person (B): In the arrangements A makes for deciding to whom to offer employment. As to the terms on which A offers B employment. By not offering B employment. (Section 39(1) and (3), EqA 2010.) Further, an employer (A) must not, in relation to employment by A, harass a person (B) who has applied to A for employment (section 40(1)(b)).

8 So, under section 39(1)(a) of the EqA 2010, an employer must not discriminate in the arrangements it makes for deciding to whom to offer employment. "Arrangements" in this context are construed broadly. They are likely to include, for example, the format and content of application forms; the physical arrangements, location and timing of interviews; and the job and person specifications. Someone who has not even yet applied for a job can theoretically bring a discrimination claim in respect of the employer's recruitment "arrangements". In all likelihood, such a claim would be based on the manner in which the job has been advertised. A claimant who has not actually applied for a job is likely, however, to have evidential difficulties in showing that they would have applied for the role if the advert had not been couched in discriminatory terms. Current employees An employer (A) must not discriminate against or victimise an employee of A's (B): As to B's terms of employment; In the way A affords or does not afford B access to opportunities for promotion, transfer or training, or for receiving any other benefit, facility or service; By dismissing B; or By subjecting B to any other detriment. (Section 39(2) and (4), EqA 2010.) Former employees Section 108 of the EqA 2010 concerns relationships (including employment relationships) that have ended. It states that A must not discriminate against or harass B if the discrimination or harassment: Arises out of and is closely connected to a relationship that used to exist between them; and Would, if it had occurred during the relationship, been unlawful. (Section 108(1) and (2).)

9 Time limits A discrimination claim must normally be submitted to an employment tribunal before "the end of the period of three months starting with the date of the act to which the complaint relates" (section 123(1), EqA 2010). However: Acts occurring more than three months before the claim is brought may still form the basis of the claim if they are part of "conduct extending over a period", and the claim is brought within three months of the end of that period (section 123(3)). Time can be extended by such a period as the tribunal thinks just and equitable (section 123(1)(b)). Continuing acts If the complaint relates to a single act (for example, a one-off comment amounting to sexual harassment, or a discriminatory dismissal) it will usually be easy to identify the date of the discriminatory act and therefore to calculate the time limit for presenting the claim to the tribunal. Sometimes, however, there will be a course of discriminatory conduct rather than an isolated incident. This is why section 123(1)(b) of the EqA 2010 stipulates that where an act or acts of discrimination extend over a period (commonly referred to as a "continuing act"), they are treated as having occurred at the end of that period. Therefore, time does not start to run until the end of the course of discriminatory conduct. Burden of proof The task of proving a discrimination case lies initially on the claimant. However, the EqA 2010 sets out circumstances in which the burden will formally shift to the respondent employer to prove that the treatment of the claimant was not discriminatory. It states: If there are facts from which a tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the Act, the tribunal must hold that the contravention occurred (section 136(2)). This does not apply if A shows that A did not contravene the provision (section 136(3)). So, in simple terms, the burden of proof will shift to the employer where the claimant shows a prima facie case of discrimination. Compensation and other remedies In a successful discrimination claim, a tribunal may make one or more of the following orders:

10 A declaration of the rights of the parties. An order that the respondent pay compensation to the claimant. An appropriate recommendation as to what steps the respondent should take to reduce the adverse effect of discrimination on the claimant or any other person. (Section 124(2), EqA 2010.) Compensation principles Compensation is nearly always awarded in successful discrimination cases. However, in cases of unintentional indirect discrimination, the tribunal must first consider whether making a declaration or recommendation (or both) would suffice. Once it has done so (and, if appropriate, made such a recommendation and/or declaration), it may go on to make an order for compensation if it considers it just and equitable to do so. In determining the amount of compensation, the following general principles apply: Compensation can be awarded for financial losses (including loss of earnings, pension, and benefits in kind and any out-of-pocket expenses) and nonfinancial losses (including injury to feelings, personal injury and aggravated damages). Compensation is based on the tortious measure of damage, and so should be calculated so as to put the claimant in the position they would have been in if the unlawful discrimination had not taken place. Claimants are required to take reasonable steps to mitigate their losses. There is no upper limit on the amount of compensation that can be awarded. Compensation can be awarded against the employer and against any individual respondents, such as other employees.