Discrimination
The discrimination complained of must be on the basis of sex, race, age, disability, sexual orientation or religion. If you are being treated unfairly at work but cannot show it is due to one of these factors then you will not have a claim for discrimination - if you are unsure then contact a solicitor specialising in employment law and discrimination to discuss the issues.
There is no minimum period of employment to receive protection against discrimination and protection is provided to employees, the self employed, independent contractors and workers.
The legislation currently prevents the following:
- Sex Discrimination - covers discrimination on grounds of gender and marital status, pregnancy and maternity
- Race Discrimination - covers discrimination on racial grounds being "colour, race, nationality, ethnic or national origins"
- Age Discrimination - covers discrimination on grounds of age
- Disability Discrimination - covers discrimination on grounds of disability.
- Sexual Orientation Discrimination - covers discrimination on grounds of your sexual orientation. It includes trans-gender people
- Religious and Belief Discrimination - covers discrimination on the grounds of your religion or belief
Direct Discrimination
Direct discrimination occurs when a person is treated less favourably than another person, due to their age, sex or race, etc. The Courts have established a "but for" test: would the person have been treated differently but for their sex, race or age, etc. Statute requires the complainant to establish the facts of the case. The employer then has to prove that they have not discriminated, if they cannot then the Employment Tribunal will find for the complainant.
Indirect Discrimination
Indirect Discrimination occurs when the proportion of women (or ethnic origin etc) who can comply with a particular condition or requirement is considerably smaller than outside the complainant group.
The Courts will take into account pool comparators to show the proportion in the complainant pool who can comply with the particular condition or requirement is considerably smaller than outside the complainant pool.
Harassment
Sexual harassment includes unwanted sexual attention from one employee to another or from the employer to employee and also harassment related to a person's sex. Racial harassment includes mistreatment because of a person's race.
Victimisation
Victimisation occurs when an employer provides less favourable treatment to an employee because they have taken action under the Race Relation Act, Sexual Discrimination Act, or Employment Protection Act.
Employer liable for employees
An employer is also liable for it's employees who carry out discriminatory acts in the course of employment. Therefore, the employee who commits the act of discrimination, harassment or victimisation may be personally liable as well as the employer.
Defences
The employer can justify the discrimination if it occurred where there is a genuine occupational qualification, for example, in the instance of actors/actresses or other entertainers.
Please note, that in relation to disability discrimination an employer has a duty to make reasonable adjustments to accommodate the employee's disability. This has been held to be more far reaching than initially perceived and can extend to the provision of training to enable the employee to carry out a different role. It is vital that an employer can prove that they have made or attempted to make reasonable adjustments in order to defend a disability discrimination claim.
A comprehensive and effective equal opportunities policy enforced by the employer can be beneficial to avoiding any claims of discrimination.
Discrimination is complex and sensitive area of employment law therefore it is always advisable to ensure that you are aware of the law. If you have any issues or would like training or guidance please call Stone Joseph on 020 7854 9098 and speak to the employment solicitors and partners Andrej Pungerl or Ruth Neil.
Time Limits
The complainant has three months from the date of the act complained about to make a complaint although the Employment Tribunal may extend the time limit, depending on the circumstances.
Compensation
There is no maximum compensation limit.
Positive Discrimination
Positive discrimination is the discrimination in favour of a minority group which is under-represented in the workplace. It is currently unlawful.
There are limited exceptions which allow an employer to discriminate positively by way of providing specialist training or encouragement to apply for certain positions as a way of remedying an under-representation. This is classified a positive action and is lawful. The employer must, however, show that there is or there has been in the previous 12 months no individual or a small percentage of individuals carrying out that particular work/role. If the employer cannot show this then the act will be discriminatory. For example it would be lawful to provide training for women only for a role where women are currently under-represented. However, it is not lawful to advertise the role for women only.
Before embarking on any form of positive action it is advisable that you seek advice from an experienced employment solicitor - please feel free to call Andrej Pungerl or Ruth Neil of Stone Joseph on 020 7854 9098