In the United Kingdom, there is a robust anti-discrimination legislative framework that oversees employer/employee relationships. At its core, the Equality Act 2010 prohibits discrimination in employment on the basis of specific protected characteristics, namely age, disability, gender reassignment, marriage and civil partnerships, race, religion or belief (including lack of belief), sex and sexual orientation.
Checking business practices against anti-discrimination law before implementation is paramount to avoid costly and time-consuming litigation at a later date.
Forms of discrimination
Discrimination manifests itself in three forms: direct and indirect discrimination, and discrimination by association.
Direct discrimination occurs where an employer intentionally treats an employee less favourably than other employees on the basis of a protected characteristic.
By contrast, indirect discrimination occurs where the discriminatory effect is an indirect consequence of a neutrally applied measure.
The Equality Act 2010 provides an exception where the employer can present an objective justification for their measure. The test for an objective justification has two parts:
(1) The measure must pursue a legitimate aim. The aim of the measure cannot be discriminatory; rather, the discriminatory effect must be ancillary. An example would be height requirements for health and safety reasons, which disfavour female employees by comparison with males.
(2) The measure must be proportionate. The measure must be no more than is necessary to achieve the legitimate aim.
Note that economic reasons alone are not a sufficient legitimate aim.
Discrimination by association
Where an individual is treated less favourably due to their association with a person who is of a protected characteristic, an employer may be guilty of discrimination by association.
What is the burden of proof?
When bringing a discrimination claim, an employee must produce evidence of unfavourable treatment by contrast with other employees in comparable circumstances. If this initial burden of proof is established, the burden shifts to the employer to offer justifiable and non-discriminatory reasons for the measure.
There are exceptions to the comparison/favourability burden where disability and maternity are concerned.
Considerations for protected characteristics
The Equality Act 2010 introduces an additional protected characteristic of maternity, for which a claim of discrimination can be brought. There is no requirement to show another person would be treated more favourably.
If an employee is either currently pregnant or has been previously, this cannot serve as a basis for unfavourable treatment. A “protected period” applies from the point an employee becomes pregnant to 26 weeks after birth. After this period, unfavourable treatment can be actionable on the basis of sex discrimination.
Discrimination and disability
Where discrimination occurs on the basis of a disability, there is no requirement to demonstrate unfavourable treatment by comparison with other persons in similar circumstances. A claimant will only have to demonstrate that they suffered a disadvantage that was linked to their disability.
Reasonable adjustments for disabled persons
Under the Equality Act 2010, employers are under an obligation to take positive steps to accommodate for persons suffering from a substantial disadvantage by comparison with others due to their disabilities. Adjustments can include policy changes, physical alterations to work premises or the provision of support services such as audio/visual aids.
Such steps will only be warranted if considered reasonable, taking into account the nature of the employee’s disability, how practical it would be to implement the changes and what cost the modifications would entail.
Harassment is defied as “unwanted conduct related to a relevant protected characteristic”, which has the purpose or effect of violating an individual’s dignity or creating an “intimidating, hostile, degrading, humiliating or offensive environment” for that individual. This applies to all characteristics with the exception of maternity, marriage and civil partnerships.
It is possible for an employee to bring a harassment claim for such conduct even if it is not aimed at them. Nor is it necessary for the employee to actually hold the protected characteristic being subject to harassment.
An employer can be held liable for harassment of their employees by third parties unrelated to the employer, where the harassment is not an isolated incident.
Discrimination claims and time limit
A discrimination claim must be brought within three months of the date of the incident that is the subject of the action.
It should be noted that the Equality Act 2010 recognises instances where an employee is targeted by an employer in response to them bringing a claim, thereby victimising the employee.
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Contact our Discrimination Solicitors London, Mayfair
Discrimination cases can be highly complex and require an understanding of the law, the evidence required and who the burden of proof lies with.
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