UNLAWFUL DISCRIMINATION

It is generally unlawful for employers to discriminate or to instruct or induce others to discriminate because of
any of the protected characteristics. The protected characteristics are:

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

This prohibition applies in respect of recruitment (including the arrangements made for recruitment), promotion, training or transfer, terms and conditions of employment, dismissal and, in certain circumstances, to events occurring after employment has ended.

There are relatively rare occasions, where a specified exception or occupational requirement applies, when it may be permissible to distinguish between employees or applicants on what would otherwise be protected characteristics. The application of an occupational requirement must be a proportionate means of achieving a legitimate aim. This is a complex area and specific advice should always be sought. The burden of proof for all forms of discrimination, once the individual has shown a prima facie case, rests with the employer to show that there was no discrimination.

In addition, under discrimination legislation there is a presumption that employers are liable for discriminatory acts carried out by their employees whether done with or without their knowledge. This vicarious liability provision means that employers could be responsible for compensation for discrimination at Tribunal in respect of a matter over which they have no specific control or knowledge. Because of this, it is necessary for employers to implement equal opportunity policies and ensure that they are rigorously applied. Ongoing information, support and training must also be given in order that employees are made aware of the correct approach for dealing with fellow employees and workers in a non-discriminatory way, and that all recruitment and promotion etc. is based on merit.

Furthermore, employees must regularly be made aware of examples of discrimination, harassment or victimisation that can occur, so they can be warned not to undertake such behaviour, and the consequences of so doing. Once all these factors are put into effect, if a Tribunal determines that a discriminatory act has been carried out by an employee, then there is a defence for the employer to say that they are not vicariously liable because of the efforts they have undertaken to prevent such matters occurring in the first instance.

In certain circumstances, employers may also be liable if they fail to take reasonably practicable steps to protect employees from persistent harassment by third parties, such as customers or clients, where the employer knows that such harassment has occurred on previous occasions.

The legislation provides protection to those employed under a contract of employment or apprenticeship, or under any other contract to personally perform work or labour such as agency workers. At the recruitment stage, discrimination can arise in relation to advertising a vacancy, the application process, selecting for interview, the interview process, determining to whom a job should be offered, or in relation to the terms on which employment is offered. When recruiting therefore, employers should pay particular regard to the following:

a. The job specification must not include unnecessary or marginal requirements which may lead to
discrimination;
b. The job advertisement should not indicate an employer’s intention to discriminate on the grounds of
disability; and
c. If necessary, reasonable adjustments should be made to the application and interview process.

FORMS OF DISCRIMINATION

Direct Discrimination – This occurs when one person is treated less favourably than another would be treated in comparable circumstances because of a protected characteristic. For example, refusing to employ an individual simply because he is disabled, or not promoting an individual simply because of a perception of his sexual orientation.

Direct discrimination can also occur because someone else belongs to a particular group, e.g. where an employee is treated less favourably because of his partner’s religious beliefs or where an employee is disciplined for refusing to follow a racist policy or practice of the employer.

Indirect Discrimination – This occurs when a provision, criterion or practice is applied which, whether intentionally or not, puts or would put persons with a particular protected characteristic at a particular disadvantage compared to others and which the employer cannot justify as a proportionate means of achieving a legitimate (non-discriminatory) aim. For example, certain types of technical qualifications may be demanded which few ethnic minorities, age groups or women may possess and which are not necessary for the job. "Word of mouth" recruitment can also result in indirect discrimination. Similarly, the specification of a set number of years experience as an essential requirement for a job could constitute indirect discrimination on the grounds of age or sex if the requirement is not objectively justified.

Victimisation – This occurs when a person is subjected to a detriment because he has done something, or it is believed he has or may do something, with reference to the discrimination legislation, such as bringing proceedings, giving evidence, or making allegations of discrimination against another person. An example would be requiring a person who has made a discrimination claim to take annual leave to attend the tribunal hearing whilst treating employees giving evidence in favour of the employer as being on duty.

Harassment – Harassment is defined as unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, regrading, humiliating or offensive environment for that individual. For conduct to be considered harassment it should "reasonably be considered" as having at least one of the above effects taking into account all of the circumstances, including the perception of the person who has claimed to be harassed. It is important to note that the victims of harassment do not have to possess the ‘protected characteristic’
themselves. Legislation prohibits harassment based on association and perception, and employees will be able to complain of behaviour that they find offensive even if it is not directed at them.

In addition, employers will be liable if a 3rd party (such as a customer or supplier) harasses an employee in the course of the latter’s employment. The employer will be liable if they know that their employee has been harassed in the course of employment on at least two other occasions by a 3rd party (whether or not by the same person) and the employer has not taken reasonable steps to prevent it from happening again. “In the course of employment” includes client meetings, networking events and dealings with external suppliers. It is advisable to deal with every incident of harassment appropriately as soon as it takes place. Employers should not wait for an employee to make two complaints before acting (apart from risking a constructive dismissal claim, the first complaint the employee makes may itself relate to two or more previous occasions of harassment).

GROUNDS OF DISCRIMINATION

RACE

Legislation prohibits discrimination on the basis of racial groups. A racial group is defined as meaning any group of persons defined by reference to race which includes colour, nationality and ethnic or national origins. The fact that a racial group may comprise of two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of the legislation. Generally, a person will belong to several different racial groups; for example, a person may be “black”, “Afro-Caribbean”, “British” etc.

SEX, MARRIAGE, CIVIL PARTNERSHIP, PREGNANCY AND MATERNITY

Legislation prohibits discrimination against an individual on the grounds of sex or marital status. When comparing men and women, employers must be careful to avoid making stereotypical assumptions about the characteristics, appearance or acceptable forms of behaviour about either sex. Merely treating the sexes differently does not necessarily constitute sex discrimination. The treatment has to be less favourable. An employer’s motives are not relevant in deciding whether there has been discrimination. Treatment that the employer believes to be in the best interests of the employee can still be discriminatory.

Employers should be aware that, in addition to the specific legislation on maternity leave, a woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled. However, more favourable treatment of women on these grounds does not constitute discrimination against men.

Employers must be particularly careful to avoid a number of less obvious forms of indirect discrimination in this area unless they can be justified, for example:

a. A stipulation that candidates must be of a particular age range e.g. 25-32 may exclude more women than men because women are more likely to take a career break due to family commitments;

b. The refusal of part-time or job-share requests from women returning from maternity leave, or the selection for redundancy of part-time staff before full-time (because fewer women than men can comply with a
requirement to work full-time; or

c. The inclusion of a mobility clause in contracts of employment (because women are more likely to be secondary earners than their partners).

GENDER REASSIGNMENT

Legislation prohibits the less favourable treatment of an individual on the grounds that the individual intends to undergo, is undergoing or has undergone gender reassignment. A woman who decides to live permanently as a man but does not undergo any medical procedures would be protected. However, transgender people such as cross dressers, who are not transsexual because they do not intend to live permanently in the gender opposite to their birth sex, are not protected by the legislation.

Where an employee is absent from work due to undergoing a gender reassignment, the employee must not be treated less favourably than he/she would have been treated if the absence were due to sickness or injury, nor must the employee be treated less favourably than he/she would have been treated if the absence were due to some other cause and, having regard to the circumstances of the case, it was reasonable for him/her to be treated no less favourably.

SEXUAL ORIENTATION

The legislation defines sexual orientation as meaning a sexual orientation towards persons of the same sex or persons of the opposite sex or towards persons of the same sex and of the opposite sex. It does not extend to other sexual practices and preferences. Direct discrimination on grounds of sexual orientation can include discrimination based on a perception of a person’s sexual orientation regardless of whether that perception is right or wrong. No disclosure of a person’s actual sexual orientation is required in order to bring a claim.

The legislation does not render unlawful anything that prevents or restricts access to a benefit by reference to being married or a civil partner.

RELIGION OR BELIEF

The legislation defines religion or belief as meaning any religion, religious belief, or philosophical belief. A Tribunal may consider a number of factors when deciding what constitutes a religion or belief, for example, collective worship, a clear belief system, or a profound belief affecting way of life or view of the world. It is as unlawful to discriminate against a person for not belonging to a specific religion or belief as it is to discriminate against someone who does belong to a particular religion or belief.

The legislation does not say that employers must provide time and facilities for religious observance in the workplace, or that particular requests for leave must be granted. However, employers should consider whether any of their policies or practices, for example, regarding dress codes and appearance, annual leave dates, rest breaks, kitchen facilities etc. may indirectly discriminate against staff or particular religions or beliefs and, if so, whether reasonable changes might be made.

There are limited exceptions to the principle of non-discrimination in respect of employment for the purposes of an organised religion and employment where there is an ethos based on religion or belief.

AGE

Legislation prohibits employers from discriminating against an individual because of age. However, unlike the other protected characteristics, an employer may be able to justify direct discrimination as well as indirect
discrimination in certain circumstances. The legislation also contains a number of particular exemptions that are specific to the age ground.

The legislation provides for a ‘default’ retirement age of 65. This is achieved by allowing employers to dismiss on the grounds of retirement employees who are at or over the age of 65 without this being regarded as age discrimination. A retirement age below 65 will constitute direct age discrimination unless it can be objectively justified. To ensure a fair retirement dismissal, employers will need to follow the provisions of the Statutory Retirement Procedure.

DISABILTY DISCRIMINATION

The legislation, which applies to all employers regardless of the number of employees employed, gives a wide definition of disability and provides significant protection to those who are discriminated against on the basis of disability. For the purposes of the legislation, a person has a disability if he or she "has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal dayto- day activities". The legislation contains some detailed guidelines on the meaning of physical or mental impairment, long-term effect and substantial adverse effect. A mental impairment does not need to be clinically well-recognised in order to qualify for protection.

A person who has cancer, HIV infection or multiple sclerosis, or who is officially certified as blind or partially sighted is deemed to have a disability for the purposes of the legislation. The legislation provides that less favourable treatment because of a person’s disability cannot be justified. However, indirect disability discrimination and unfavourable treatment because of something arising in consequence of a person’s disability are capable of justification if the employer can show that it is a proportionate means of achieving a legitimate aim.

Employers are also under a duty to make reasonable adjustments where any provision, criterion, practice or physical feature of premises place the disabled person at a substantial disadvantage in comparison with persons who are not disabled. The defence of justification is not available where an employer fails to make a reasonable adjustment.

Generally, employers should not ask an applicant questions about health, disability or absence record before the person has been offered a job either outright or on conditions (such as ‘subject to satisfactory references/health check’). There are some exceptions, where pre-employment health questions may be permissible, namely:

  • in order to find out if any applicant needs reasonable adjustments for the recruitment process, such as for an assessment or an interview.
  • to find out if a person (whether they are a disabled person or not) can take part in an assessment as part of the recruitment process, including questions about reasonable adjustments for this purpose.
  • for monitoring purposes to check the diversity of applicants.
  • to ensure that an applicant who is a disabled person can benefit from any measures aimed at improving disabled people’s employment rates.
  • because having a specific impairment is an occupational requirement for a particular job.
  • to establish a person’s ability to carry out a function that is intrinsic (or absolutely fundamental) to that job.
  • to vet applicants for reasons of national security.


The 24 Hour Advice Service should be contacted before asking pre-employment health questions. It is not unlawful to treat a disabled person more favourably than a person who is not disabled.

EQUALITY POLICIES

Whilst it is not a legal requirement for an organisation to have an Equality Policy, they are recommended as good management practice. Properly administered and monitored they can promote equality, thus helping
eliminate discriminatory practices within an organisation and can provide useful evidence in defending against discrimination claims. In order to safeguard both the company and yourself, you are advised to:

  • publish a meaningful equality statement;
  • produce and publish an action plan for implementing your equality policy;
  • check that your rules, terms and conditions, practices and procedures do not discriminate;
  • instruct and train the staff who work for you;
  • make sure that YOUR day-to-day instructions and actions and speech are not discriminatory;
  • take special care when making judgements about people;
  • make sure not to discriminate in job advertisements or in the way you specify vacancies to agencies;
  • make careful notes why you decided not to select people for employment, training, promotion, etc;
  • regularly and formally audit all the above points, and note the audit findings and remedial action you will take.

An employer may be held to be vicariously liable for any act done by an employee in the course of employment, with or without the employer’s knowledge or approval, unless the employer can show that such steps were taken as were reasonably practicable to prevent the employee doing the act in question.

In practice this means a constant monitoring of the environment, behaviour of employees and adherence to the Equality Policy and procedures. It is the duty of all managers to ensure the workplace is discrimination free. Breaches of the policy should be treated as a disciplinary matter and serious breaches treated as gross misconduct. Where managers fail to act, disciplinary action (including dismissal) may result.

TRAINING AND PROMOTION

In the areas of training and promotion it is unlawful to discriminate:

  • in the arrangements made to decide who will be promoted;
  • by refusing or deliberately omitting to offer that person promotion e.g. deliberately leaving a person off the shortlist because of their race, sex, disability etc.;
  • the way opportunities for promotion, transfer, training or other benefits are provided;
  • in any new employment terms offered to that person - such as different rates of pay or conditions of work relating to a promotion.
  • by subjecting a person to any other detriment

The company has a responsibility to train its employees in such areas necessary to ensure, amongst other things, the employees are:-

  • competent to carry out the job;
  • aware of the Company’s Health & Safety, Equality and Harassment policies and procedures;
  • aware of their responsibilities under Health & Safety at Work legislation;
  • aware of their responsibilities under equality legislation;
  • aware of their responsibilities relating to harassment in the workplace.

Selection for training and re-training should be on the basis of need and should be provided on a regular and structured basis. When holding training sessions or carrying out on-the-job training, care should be taken to ensure any language problems are addressed, and consideration given to reasonable adjustments for disabled employees.

Individual training records should be maintained in the Personnel files and these should be periodically inspected by Senior Managers. Promotion within the organisation should be on merit and care should be taken to ensure policies and procedures resulting in promotion are followed. These should in general terms follow recruitment procedures and ensure.

  • All eligible members of staff are aware of any promotional prospects;
  • Where the possibility of promotion exists applications are invited;
  • The criteria for consideration are clearly stated;
  • Shortlisting for interviews are based on a documented procedure;
  • Where possible, more than one person is involved in interviewing and the final selection;
  • The appointment can be clearly demonstrated to be based on ability and potential.

MONITORING EQUALITY

Monitoring is not mandatory for most employers. However the Equality and Human Rights Commission recommends that all employers become involved in monitoring protected characteristics throughout the
employment relationship.

Equal opportunities monitoring forms (form EO) are available from Peninsula for this purpose.

A monitoring form should be issued with all application forms and when returned should be separated immediately, before any selection decision is made. Employers will then be able to compile a statistical report
showing the relevant protected characteristics of all applicants, those who are short-listed and those who are eventually offered employment. This should enable employers to demonstrate that the people to whom employment is offered are a true representation of those who apply.

The forms can also be used in respect of an employer's existing staff, for example measuring if they are representative of the community in which the organisation is placed. Most importantly, the form is a statement
that the organisation is an equal opportunities employer. Employers should keep the results of any particular analysis on record for a minimum period of nine months and even longer where possible, and the periodic analysis of the current workforce should be retained as a permanent record.