- by Carl Soan, Jones Chase Employment Lawyers
- 28 Sep 2016
With media reports of a surge in the number of race hate crimes reported since the UK’s vote result in the referendum over EU membership was published, Career Moves heard from a specialist employment solicitor, Carl Soan, about the anti-discrimination laws that apply to the workplace. Here’s a timely summary of how the key provisions work.
The Equality Act 2010, among other things, prohibits discrimination in the workplace on the following grounds:
- Disability (including association);
- Gender reassignment;
- Marriage and civil partnership;
- Pregnancy and maternity;
- Sex (being either male or female);
- Race (this covers colour, nationality, ethnic origin and national origin);
- Sexual orientation (including perception or association);
- Religion (including perception or association); and
- Belief (including perception or association)
These are known as the ‘protected characteristics’. It can be very subtle, for example an employer (as well as the individual employee who says the words) can be liable for racial harassment if an employee makes derogatory remarks about, say, a black person to someone who is or is not black. Provided, in this example, the reason for the treatment is because of colour or race, it does not matter that the person complaining of harassment does not share that particular characteristic (e.g. someone who is not black can validly complain of harassment as well as someone who is black).
The way in which workplace discrimination arises takes the following forms:
(1) Direct discrimination. An example is where a job candidate is rejected because they are female or perceived to be gay.
(2) Indirect discrimination. This is where an apparently neutral provision, criterion or practice at work places someone (called, say, Person A) who possesses a protected characteristic at a disadvantage when compared with someone who does not share that same protected characteristic and it places others with the same protected characteristic as Person A at a disadvantage and which the employer cannot objectively justify. An example is the way in which the need to work from 9am to 5pm can place women with principal childcare responsibilities at a disadvantage when compared to men.
(3) Victimisation. An example is where an employee alleges they have been discriminated against at work because of their religion and they are later overlooked for promotion or are subject to bullying from the alleged perpetrator of the discriminatory act.
(4) Harassment. There are three separate definitions. One means conduct of a sexual nature. Another arises where someone is treated less favourably because they rejected or submitted to harassment of a sexual nature or harassment related to sex or gender reassignment. But one of the most common types of harassment claim I see is where a person engages in unwanted conduct related to a protected characteristic, and the conduct has the ‘purpose’ (i.e. intentionally) or ‘effect’ (i.e. unintentionally) of; (i) violating the other person’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person.This third type of harassment applies to all the protected characteristics apart from pregnancy and maternity and marriage and civil partnership.
For disability discrimination there are some slight differences and there is a duty to make reasonable adjustments for disabled people where the disabled person is placed at a substantial disadvantage by a workplace rule or a physical feature of the employer’s premises or the failure by the employer to provide an auxiliary aid.
The law protects employees, job applicants, ex-employees, workers and the self-employed (as regards the latter, where they are required personally to carry out work).
The employer is usually held liable for discriminatory acts of employees regardless of whether they knew of such acts, but employees can be sued in Employment Tribunals, and held liable, and face awards of compensation against them. But an employer has a potential defence if it can show it took all reasonably practicable steps prior to the discrimination occurring to prevent it from happening.
Liability for employers is wide-ranging as it covers any unlawful act during the course of an employee’s work whether that act was done during an authorised task or not, provided the act is linked to work in some way. Liability can extend to events outside work provided the event is an extension of the workplace.
At a time when for some emotions are running high following the ‘Brexit’ vote, it is important for employers of all sizes to reiterate to its workforce the need to treat all staff, regardless of their nationality, race, religion or belief or any of the other protected characteristics, with respect, dignity and equal opportunity and to remind them that they could face potential personal liability if they discriminate against any other staff member. Financial awards for successful discrimination claims brought in an Employment Tribunal are uncapped.
Thanks to Carl Sloan, for providing us with this invaluable information.