Discrimination can occur in many different ways, even before employment starts. Here at Oxley & Coward we can help you to determinate what amounts to discrimination, what doesn’t, what rights employees have which employers should respect, and the remedies available to employees as a result.
If an employee feels they are being treated unfavourably, or less favourably than other employees, and the reason for this is related to their:
- race (including colour, nationality and ethnic or national origins);
- sexual orientation;
- religion or belief;
- gender reassignment;
- pregnancy and maternity
that employee may have a discrimination claim, entitling them to significant compensation from their employer. Unlike unfair dismissal claims, there is currently no cap on the amount that can be recovered by an employee if they are successful in bringing a discrimination claim. An employee can also bring an unfair dismissal claim in addition to a discrimination claim, if they are dismissed in connection with any of the above characteristics. Employers could therefore be wise to take professional advice when making decisions regarding employees, where any of the above issues may be at play.
Employers providing services
In addition to being mindful of how they treat their employees, an employer must also ensure that they and their employees do not discriminate against those to whom they provide services. The Equality Act protects people from the point they request the services, through the period when the services are being provided.
A service may be considered to be provided in a discriminatory way if the service is refused due to a protected characteristic. Also, discrimination can also arise where the service is provided: on unequal terms; in a different way (such in a hostile or discourteous way); terminated; or otherwise provided to the person imposing some other form of detriment.
Types of discrimination
Discrimination can arise in a number of ways, not all of which are always clear or what we would typically think of as amounting to discrimination, but all of which are protected under the Act.
Direct discrimination occurs when a person is treated less favourably than another person because of a protected characteristic. An example may be that an employee is not promoted because of their sex.
Indirect discrimination occurs when there is a rule, policy or practice that applies generally but which particularly disadvantages people who share a particular protected characteristic. An example may be a ‘no dogs’ policy in the place of work, which would indirectly discriminate against those of poor sight or blind who need a guide dog to help them access their place of work.
When treatment of people is differentiated because they are linked with or associated with a person who has a protected characteristic, discrimination by association occurs. An example may be that a person’s bother is homosexual, and they are refused employment because of their association with their brother.
A type of discrimination that employees and employers may not be aware of being prohibited is discrimination by perception. This is where a person is discriminated against because they are wrongly thought to have a protected characteristic, or are treated as if they do. For example, an employee who walks with a limp is not invited to be part of an important training session which is taking place on the third floor of the building which is not accessible by lift, because they are wrongly thought to have a disability. Even if someone who discriminates knows the reality is that the person discriminated against does not have the protected characteristic, they are protected under the legislation.
It is important to note however that policies and practice could potentially be justified if it can be shown that its application is a proportionate way of achieving a legitimate aim for the employer.
Harassment and Victimisation
In addition to pure discrimination claims which can occur as outlined above, employers and employees should be aware of the potential to bring harassment and victimisation claims in connection with the protected characteristics.
Harassment involves someone engaging in unwanted conduct related to a protected characteristic, which has the purpose or effect of violating the person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment. An example would be someone who has learning difficulties being subjected to jokes concerning their condition.
Victimisation however occurs when someone is treated badly as a result of having made a complaint, or supporting someone who has made a complaint about discrimination or harassment under the Equality Act 2010, or may be considering making such a complaint. For example, an employee being dismissed because they have provided a statement in support on behalf of another employee who has brought a race discrimination claim against the employer. It is important to note however that if a person has maliciously made or supported a claim which is found to be untrue, then the employee is not protected from victimisation.
If you want to know where you stand in relation to equality issues as an employee or employer, contact us today!