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Discrimination

The Equality Act

Prior to October 2010, the law on equality and anti-discrimination was set out in many different statutes and regulations (for instance, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995).

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In October 2010, the Equality Act brought all of this legislation together to harmonise and strengthen the existing law on equality.

The aim of the Equality Act 2010 is to ensure that fair treatment for all whether at work, or when using goods, facilities or services.  All aspects of the employment relationship are protected – ranging from recruitment, promotions, transfers and training through to dismissals and even the provision of references.

The Protected Characteristics

Discrimination may be directed towards people because of the following nine “Protected Characteristics” :

  • Age 
  • Disability
  • Gender reassignment
  • Pregnancy and maternity
  • Sexual Orientation
  • Marriage and Civil Partnership
  • Race
  • Religion or belief
  • Sex

Types of Discrimination

There are various types of unlawful discrimination :

Direct Discrimination : this means treating a person less fairly or less favourably than someone else because of a protected characteristic.  As a general rule, Direct Discrimination cannot be justified and is therefore almost always going to be unlawful.

Indirect Discrimination : this means putting in place a rule, or way of doing things that has the effect of disadvantaging people who possess a particular protected characteristic. Unlike most types of direct discrimination, indirect discrimination is only unlawful if it cannot be objectively justified.  To justify it, there must be a legitimate need for the rule, the rule must be necessary to achieve that aim and there must be no alternative.

Harassment : this means unwanted conduct relating to a protected characteristic that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for someone, or violating their dignity.

Victimisation : this means treating someone less favourably because they have complained about discrimination, or supported someone else who has.  Victimisation also occurs where one person treats another badly because he or she is suspected of having done this, or of intending to do so.

Disability Discrimination and the duty to make reasonable adjustments

The law recognises that achieving equality for disabled people may mean removing, reducing or preventing the obstacles a disabled person might face.  For example, an employer may be expected to make changes to work patterns, modify work equipment or provide extra supervision, training or support.

This is called the duty to make reasonable adjustments.

If an employer knows that a particular employee or job applicant is disabled and is likely to suffer a disadvantage by workplace policies, practices or features, the employer is under a proactive duty to make reasonable adjustments to alleviate that disadvantage.

Failure to make a reasonable adjustment can never be justified.

Discrimination Arising from Disability (DAFD)

It is unlawful to unjustifiably treat a disabled person less favourably because of something arising in consequence of their disability.

For example, a worker is off sick for 6 months suffering from clinical depression. It would be unlawful DAFD to dismiss this worker because of their sickness absence.

The employer would only be able to defend this claim if they could show that the dismissal was objectively justified.

As with the duty to make reasonable adjustments, the employer must know (or be reasonably be expected to know) about the disability for there to be unlawful DAFD.

Pre-employment health questions

Before an employer offers someone a job, they cannot ask blanket questions regarding health and disability.  Asking the question itself is not unlawful, but if the employer acts on the answer, for example by not offering the job or offering less beneficial terms to that particular applicant, it probably will be.  Once a person has passed the interview stage, the employer can ask them what they like, but they still need to be careful how they use that information, or they may face discrimination claims.

So, until a job offer has been made, the employer can only an applicant ask health questions in very specific circumstances to :
decide whether to make reasonable adjustments for the selection process

  • ensure that the applicant can carry out functions intrinsic to the job
  • monitor diversity
  • take positive action to assist disabled people
  • assure employers that the candidate has the disability where the job genuinely requires it

How do I make a claim?

Unlike some employment rights, claims for discrimination are not dependent on being an employee or upon length of service.  This means you have the right not to suffer discrimination of any kind from the very day that you apply for a job. 
If you believe that you have suffered discrimination by your employer, a co-worker or other third parties at work, you may need to raise a grievance with your employer before you bring a claim. If you are thinking of doing this, you should take legal advice first.

You could also serve the employer with an Equalities Questionnaire.  This is a very useful way to gather evidence about your claim and to help you to decide whether you have a valid claim for discrimination or not.  You can download the Questionnaire from www.equalities.gov.uk and you can send this to the employer anytime before you issue your claim, or within 28 days of issuing your claim.  The employer has 8 weeks to respond to your Questionnaire.  If the employer does not respond or if the answers they give are evasive or unclear and the claim goes to tribunal, the Employment Judge will take this into account when they come to decide whether or not you have been discriminated against.

The employer must not treat you badly because you have raised a grievance or served them with a questionnaire.  If they do this, you will probably have a claim against them for victimisation as well. 

Remember, there are very strict time limits for making claims in the tribunal and these can be as short as 3 months, so you should seek legal advice as soon as possible.

If you believe that you have suffered discrimination as part of an applications process, at work or upon termination and would like to speak to one of our specialist solicitors for further advice, please contact Judith Curran by email or telephone 01689 887872.