One major area of employment law in the UK is the area of anti-discrimination. It is currently unlawful for employers to discriminate against people on the grounds of their sex, race, disability, sexual, orientation, religious or similar beliefs or age – “protected characteristics”. The relevant legislative provisions are contained in the Equality Act 2010. (See separate article)
Unlawful discrimination in employment
Discrimination may occur in many situations. The legislation expressly provides that discrimination in employment is unlawful. It is important to remember that protection against discrimination in employment includes protection for:
- prospective employees
- former employees
- contract and temporary workers
It is unlawful for an employer to discriminate as follows:-
- in the arrangements made for the purpose of determining who should be offered employment in the terms on which employment is offered
- by refusing or deliberately omitting to offer a person employment in the way a person is given access to opportunities for promotion, training, transfer or any other benefits, facilities or services or by refusing or deliberately omitting to give the person access to them
- by dismissing the person, or subjecting the person to any other detriment
Key forms of protection
Most of the legislation prohibiting discrimination is very similar and contains the same key forms of protection:
Direct discrimination – this arises where an employer treats an employee less favourably than he would treat another employee because of that employee’s sex, race, disability, sexual orientation, religious belief or age.
Direct discrimination is, for the most part, always unlawful, unless a genuine occupational requirement in the relevant legislation can be relied upon. The standard definition used in the legislation states:-
A person (“A”) discriminates against a person (“B”) if on the grounds of B’s [gender, race, disability, sexual orientation or religious belief] A treats B less favourably that he treats or would treat other persons.
Indirect discrimination – this arises where an employer applies a requirement or condition which although it appears to be applied equally to all employees, a substantial proportion of the members of a particular protected group cannot comply. This type of discrimination will not be unlawful if the employer can objectively justify it. Although the precise definitions in the individual pieces of anti-discrimination legislation are slightly different, essentially, indirect discrimination is defined as:
A person (“A”) discriminates against another person (“B”) if A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same [gender, race, disability, sexual orientation or religious belief, age] as B but which puts or would put persons of the same [gender, race, disability, sexual orientation or religious belief, age] as B at a particular disadvantage when compared with other persons, and which puts B at that disadvantage.
A cannot show the provision, criterion or practice [being applied] is a proportionate means of achieving a legitimate aim.
Victimisation – all of the anti-discrimination legislation provides protection for an employee who has raised a complaint of discrimination. The relevant provisions seek to protect any individual who has made a complaint of discrimination to his or her employer, brought proceedings under legislation or who has assisted another in doing so.
Harassment – one specific form of discrimination is harassment. This is defined as follows:-
A person (“A”) subjects another person (“B”) to harassment where, on grounds of [gender, race, disability, sexual orientation or religious belief], A engages in unwanted conduct which has the purpose or effect of:- violating B’s dignity; creating an intimidating, hostile, degrading or humiliating or offensive environment for B.
For the purpose of this definition, conduct is generally assumed to violate B’s dignity or to create a hostile environment only if it should be reasonably considered to do so, taking into account all the circumstances including in particular the perception of B. The intention is to cover banter and jokes which may not be directed at an individual but which are are genuinely found to be offensive.
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