Until now, the general approach has been that a company cannot claim privilege against its own...
The issue of equality has never been more topical and employers must ensure they protect their businesses as much as possible from discrimination occurring in the workplace, for which they are potentially liable. It is therefore vital that staff are treated consistently and are not singled out on the basis of any protected characteristic.
What is a protected characteristic?
There are nine protected characteristics:
Sex, marital or civil partnership, race, disability, gender re-assignment, religion or belief, sexual orientation, pregnancy or maternity leave and age.
Sex - this means being a man or woman, men sharing this characteristic with other men and women with other women.
Marital or civil partnership – marriage covers any form of formally recognised UK marriage. A civil partnership only relates to same sex partnerships.
Race – this includes colour, nationality, national origins, ethnic origins but does not currently cover caste.
Disability – this is a physical or mental impairment which has a substantial and long term adverse effect on your ability to carry out normal day to day activities.
Gender re-assignment – this is somebody proposing to undergo, is undergoing or has undergone the process for the purpose of re-assigning the persons sex by changing its physiological or other attributes of sex.
Religion or belief – this covers religion, religious belief or philosophical belief.
Sexual orientation – this includes persons of the same sex, persons of the opposite sex or persons of either sex.
Pregnancy or maternity leave
Age – this can be reference to a person of a particular age group or persons of the same age group or particular age or to a range of ages.
It is unlawful to discriminate on the basis of any of the above protected characteristics. There are four principal ways in which an employer may discriminate against an employee; by directly discriminating against, by indirectly discriminating against, by victimising or harassing them. In addition, there are two forms of discrimination which are specific to disability discrimination; namely failure to make reasonable adjustments and discrimination arising from a disability.
Direct discrimination
This is where an employee is treated less favourably because of a protected characteristic e.g. a female employee is denied promotion whereas her male colleague in the same role is promoted. If the reason for the denial of the promotion was because of her sex, this would constitute direct discrimination.
It is also possible to discriminate by association or by perception i.e. if the alleged discriminator perceives you to have a particular protected characteristic and discriminates on that basis, it is irrelevant whether you hold that protected characteristic or not. In terms of associative discrimination, this is where you are discriminated against as a result of your association with somebody who has a protected characteristic.
In terms of direct discrimination, the employee will need to point to a comparator in order to evidence that they have been treated differently on the basis of a protected characteristic. They need to be compared to somebody who does not hold that protected characteristic to assess whether that was the basis upon which they were discriminated against. The comparator can be an actual person and therefore a real comparator or alternatively a hypothetical comparator but in both cases the comparator’s circumstances must not be any “materially” different to their circumstances.
Indirect discrimination
Indirect discrimination is where a policy, provision or criteria which appears to apply to all staff, with the intention that it does not discriminate, indirectly ends up disadvantaging a particular group of people with the particular protected characteristic.
If an employer imposes a provision, criteria or practice the result of which is to disadvantage a group of people with a protected characteristic, the employer is able to put forward justification of that policy, criteria or practice if it can show there is a legitimate reason for doing so.
A policy could include an attendance policy whereby all employees are required to achieve a specific level of attendance, which in the case of someone with a disability, may not be able to achieve the same level of attendance as without a disability. As such without any adjustments made in relation to that particular individual, the attendance policy would disadvantage the disabled employee.
Harassment
The general definition of harassment is that an individual violates another individual’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that individual. In assessing whether the harassment has that effect, an employment tribunal would need to take into account the other individual’s perception as to whether it was reasonable for that conduct to have such effect.
Often people think that harassment needs to constitute a course of events, but a one off instance can amount to harassment. However, any conduct that amounts to harassment must be related to a protected characteristic.
Victimisation
Victimisation is a word which is often banded about, but without the real understanding of its legal definition. In order to bring a claim for victimisation, an employee needs to be subjected to a detriment as a result of them having done “a protected act”. This means either having brought proceedings under the Equality Act, given evidence in relation to those proceedings or alleging that another employee has contravened the Equality Act in some way. A common example of victimisation is where an employee assists a colleague who has raised allegations of discrimination, or the employee helps that colleague by providing evidence and as a result is treated less favourably.
Disability discrimination
As stated above, disability discrimination has two additional forms of discrimination as follows:
Failure to make reasonable adjustments
Once an employer is on notice that an employee is disabled, there is a duty to make reasonable adjustments in relation to the role. The logic behind this is that an employee with a disability should not be disadvantaged in any way, and reasonable adjustments can include making adjustments to physical features or making adjustments to any provision, criteria or practice e.g. discounting disability absence in respect of any absence management policy.
Discrimination arising from the disability
This is a new strand of disability discrimination which makes it unlawful for an employer to treat an individual less favourably based on something arising out of a disability. For example, an employee is dismissed for a significant amount of absence and the employer decides to dismiss. The reason for the dismissal is not the disability itself, but rather the level of absence which arises from the disability.
Who is protected against discrimination?
Employees and job applicants are protected, as are contract workers including agency workers who are protected against discrimination by the end user of their services.
Compensation for discrimination
As claims for discrimination can be brought from day 1, if employees are dismissed with less than two years’ service but can evidence that the act of dismissal is an act of discrimination, then they should be entitled to compensation for loss of earnings. They would also be entitled to receive compensation for injury to feelings set out as follows (from 6 April 2024):
Low band - £1,200 to £11,700
Middle band - £11,700 to £35,200
Top band - £35,200 to £58,700
Alternatively, if the employee has more than two years’ service, they can bring a claim for unfair dismissal as an alternative and separate claims for discrimination in relation to any separate acts of discrimination.