Discrimination at work – overview

The Equality Act 2010 (EA) is the key piece of legislation relating to discrimination at work.

The EA provides protection for every section of UK employment, including recruitment, training, promotion/lack of promotion, dismissal, differences in employee pay, and unfavourable treatment in the workplace.

Personnel defended by this legislation cover a vast area of the UK work force, including employees, workers, trainees, job applicants and ex-employees. The self-employed are also protected.

Discrimination can be generated by a number of sources, such as an employer’s actions or the actions of a employee’s agents or colleagues.

Protection is available to a worker if they suffer unfavourable treatment due to them having a “protected characteristic”. The characteristics that fall under this criteria are:

• Gender;
• Age;
• Race & Nationality;
• Ethnic or National Origins;
• Sexual Orientation;
• Disability (A disability if defined by a physical or mental impairment that has severe long-term adverse effects on an employee’s ability to perform everyday activities);
• Pregnancy & Maternity;
• Marriage and Civil Partnership;
• Religion & Belief (including philosophical belief and the non-religious views of atheism)

What is Discrimination?

The EA recognises several different forms of discrimination:

• Direct discrimination;
• Indirect discrimination;
• Harassment and victimisation.

Direct discrimination is usually the most visible discrimination type. It involves a person being treated in a way clearly less favourable than others as a result of the person’s “protected characteristic”. A common case of direct discrimination involves an employer not offering an applicant a job because of their race or age.

Indirect discrimination is more difficult to identify than direct discrimination. This kind of discrimination exists in a situation where an employer has a general rule, referred to as a provision, criterion or practice (PCP), that applies to all employees yet places certain individuals at a disadvantage compared to the majority.

A common example of indirect discrimination would be for a business to expect all its employees to work certain hours despite some employees having private duties that do not allow for this. Such expectation would not be considered direct discrimination as the same rule applies to all employees, but as it directly harms the lifestyles of some staff it can be considered indirect discrimination.

However, there is some leeway for employers in regards to indirect discrimination. If it can be proven that a rule that applies to all employees is in place as a ‘proportionate means of achieving a legitimate aim’ for the business it may be justified as being an non- discriminatory act.

Harassment involves an employee being treated in a manner that cause them emotional or physical suffering. Harassment is often hard to determine as those responsible for the act may not realise the harm they are causing. Harassment most often comes in the form of discrimination due to an employee’s protected characteristic (see Stress, Harassment & Bullying for more information).

Victimisation refers to the treatment of employee(s) that assist a colleague with an issue of harassment. As a result they are often isolated from their peers as they are made to feel punished for speaking out (see Whistleblowing for more details).

Disciplinary and Grievance procedures

In the case of a discrimination claim, both the employer and employee need to consult the legislation set out by the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk), as this is required for assessing how to resolve workplace disputes of all kinds.

A successful employee claim can potentially be reduced by up to 25% should a tribunal rules that the ACAS code has been ignored. There is also a 25% penalty for employers who choose not to acknowledge the set out by ACAS Code.

Are there any exceptions?

Some exceptions to the ACAS Code of Practice on Discipline and Grievance Procedures legislation is possible. Enhanced redundancy payments made in accordance with the statutory redundancy scheme need not follow EA rules, as are the methods used to calculate statutory redundancy pay, despite the latter being based on age-related criteria.

Compulsory retirement

An employee can be made to face compulsorily retirement if a notice of retirement was served to them on or before 5th April 2011, detailing the retirement terms for workers who reached the previous default retirement age of 65 before 30th April 2011.

These retirement terms can also be applied to an employee if there is an objective justification for their retirement on the grounds that it constitutes a ‘proportionate means of achieving a legitimate aim’, a notion similar to the rule exempting some forms of indirect discrimination.

It is no longer possible to force compulsorily retirement on someone simply because they have reached the default retirement age of 65. They now have the right to decide for themselves. However, ‘occupational retirement’ can be evoked by employers if the nature of a job requires a worker to be of certain age in order to perform their role efficiently.

Benefits

Certain benefits are often offered to employees once they have been employed by a company for a specific length of time. This can include opportunities such as pay increases and private medical insurance.

Since younger employees are less likely to meet the length of service such treatment demands, this arguably makes it a form of indirect discrimination. Benefits of this type are allowed as long as the receipt of such benefits requires an employee to have served five years service or less.

Should receipt of a benefit require five or more years service, the employer must be able to prove that this benefit either motivate employees, meets legitimate business needs, or rewards employees for their loyalty and experience. Even though its structure is heavily reliant on the notion of age groups, The National Minimum Wage is excluded from this legislation.

Making discrimination claims

Most discrimination claims need to be filed within three months less one day from the date that the discrimination occurred. If this discrimination is part of an ongoing process the time period will run from the most recent date that the discriminatory behaviour happened. The case will be dealt with by an Employment Tribunal.

No minimum length of service is required when making a claim on the grounds of age discrimination, and no limit exists for the amount of compensation that can be awarded. By law any employee making an age discrimination claim is able to access information directly from their employer in order to assist their case. The findings of this report should be made available to an employer within 28 days of any legal proceedings so that their legal representatives can fairly understand what grounds they are facing action on.

How is a discrimination claim decided?

To prove that discriminatory behaviour has occurred, an employer must present this treatment to be unfair and against the greater good of the business. Should they fell to do this the employee is likely to be awarded compensation by the tribunal.