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Discrimination

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Discrimination Overview

Discrimination is a complex area of law and this fact sheet is designed as a summary for use by employers. For specific advice needs or for more detailed guidance we recommend that you speak to your legal advisor.

The regime concerning discrimination in employment takes a consistent approach across the protected characteristics where possible. This fact sheet is intended as an overview of discrimination generally and covers the issues and advice that is relevant to each protected characteristic. However, where appropriate separate fact sheets exist providing greater detail on particular protected characteristics, see below.

For more detailed guidance on age discrimination see Age Discrimination [FS15.02]. For more detailed guidance on disability discrimination see Disability Discrimination [FS3.04]. For more detailed guidance on pregnancy and maternity discrimination see Pregnancy and Maternity Discrimination [FS11.03]. Regulations are also in place preventing less favourable treatment of part-time workers and employees working on fixed-term contracts. See Fixed Term Employees [FS42] and Part-Time Workers [FS33].

The Legislation

Discrimination is prohibited under the Equality Act 2010 (Equality Act), the majority of which took effect on 1 October 2010. The Equality Act covers nine protected characteristics.

The Protected Characteristics

The Equality Act covers the following protected characteristics:

  1. Age.
  2. Disability.
  3. Gender reassignment.
  4. Marriage and civil partnership.
  5. Pregnancy and maternity.
  6. Race.
  7. Religion or belief.
  8. Sex.
  9. Sexual orientation.

Age

This relates to a person of a particular age group and a reference to an age group for these purposes is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages. See Age Discrimination [FS15.02].

Disability

A person has a disability under the Act if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. See Disability Discrimination [FS3.04].

Gender reassignment

A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. A reference to a person who has the protected characteristic of gender reassignment is a reference to a transsexual person. 

There is no requirement for the person to be under medical supervision to come within the definition. The person must, however, make a commitment to present in a different gender to their birth gender on a permanent basis. Based on this it would appear that transvestites are not covered by this protected characteristic, except where the discriminator wrongly perceives that the transvestite is undergoing gender reassignment.

The government has produced guidelines for employers when recruiting and employing transgender employees which can be accessed using the link below:

https://www.gov.uk/government/publications/recruiting-and-retaining-transgender-staff-a-guide-for-employers

Further advice and guidance from the research paper published by Acas which can be accessed below:

http://www.acas.org.uk/media/pdf/6/f/Supporting-trans-employees-in-the-workplace.pdf

Marriage and Civil Partnership

A person has the protected characteristic of marriage or civil partnership if they are married or are in a same-sex civil partnership. Marriage covers any formal union which is legally recognised in the UK as a marriage. Therefore, marriage between a man and a woman and between same-sex couples are covered.

It does not protect single people, those co-habiting or those in other relationships outside marriage or civil partnership. Divorcees and those whose civil partnerships have been dissolved are not covered. Engaged couples or those intending to marry or enter a civil partnership are not covered.

It is not possible to have marriage and civil partnership discrimination by perception or association. There is therefore no scope for an employee to be treated less favourably because they are perceived to be married or a civil partner, or because of their association with someone who is married or a civil partner.

Further guidance for employers, which has been produced by Acas, can be accessed using the link below:

http://m.acas.org.uk/media/pdf/b/0/Marriage_and_Civil_Partnership_Guide_Nov.pdf

Due to conflicting case law it is unclear (but doubtful) whether it is unlawful to discriminate on the basis that an employee is married to a particular person. More likely it is irrelevant that they may be married to that person if the employer would have acted in the same way had they been in another form of close relationship.

Pregnancy and Maternity

There is no specific definition of pregnancy and maternity under the Equality Act but instead a concept of a protected period, see Pregnancy and Maternity Discrimination [FS11.03].

Race

Race includes colour, nationality and ethnic or national origins (potentially including caste) and a racial group is a group of persons defined by reference to race.

Racial groups can be defined by exclusion therefore those of 'non-British' nationality could form a single racial group.

Nationality is different from race and much wider in its application and would include, for example, Northern Europeans who are discriminated against on the grounds of their country of origin. The Scots and the English have been held to be separate nationalities.

Ethnic origin is added because it too can be different from nationality or race.  Ethnic groups can span a variety of racial or national origins and could include, for example, Sikhs or Jews.  To establish an ethnic origin, the group of people must have:

  • A long shared history of which the group is conscious and which distinguishes it from other groups.
  • A cultural tradition of its own including family, social customs and manners, often associated (but not necessarily) with religious observance.

Case law has established that Sikhs, Jews and Romany gypsies comprise ethnic groups. 

Less favourable treatment as a result of immigration status (as opposed to a specific nationality) is not protected.

Religion or Belief

Religion means any religion and this also includes a lack of religion.  Belief means any religious or philosophical belief and again this includes a lack of belief.

Religions include Baha'i faith, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism, Rastafarianism, Sikhism, Zoroastrianism, Druidism, the Church of Scientology and the Divine Light Zentrum. Denominations or sects within a religion, such as Methodists within Christianity or Sunnis within Islam, may be considered a distinct religion.

Case law has determined that for a belief to constitute a philosophical belief, it must satisfy five requirements; it must be genuinely held, it must be a belief and not an opinion or viewpoint based upon the present state of information available, it must be a belief as to a weighty and substantial aspect of human life and behaviour, it must attain a certain level of cogency, seriousness, cohesion and importance and, finally, it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Examples of what may potentially constitute a philosophical belief include; belief in climate change, Creationism and Darwinism, but only where the above five criteria are met. Belief in a political philosophy or doctrine, such as Socialism, Marxism or free-market Capitalism, might qualify but support of a political party in itself will not amount to philosophical belief. Similarly, where a belief is held by one individual alone, and there is no evidence that any other person shares it, it will not amount to a philosophical belief.

Acas has produced guidance on this which can be accessed using the link below:

http://www.acas.org.uk/media/pdf/1/8/Religion-or-belief-discrimination-key-points-for-the-workplace.pdf

Sex

Having the protected characteristic of sex means being either a man or a woman, men share this characteristic with other men, and women with other women.

Sexual Orientation

Sexual orientation means a person’s sexual orientation towards persons of the same sex (homosexual), persons of the opposite sex (heterosexual) or persons of either sex (bisexual). 

The definition does not include particular sexual practices, nor preferences for particular types of sexual activity, such as sadomasochism or bestiality. Celibacy is not covered.

Who is protected?

The Equality Act covers discrimination in the field of employment and protection is given to job applicants as well as to those already in employment.  The definition of ‘employment’ includes not only employees but also a wider category of workers, office holders (directors) and some self-employed people provided they are contracted to perform the work personally.  Protection can be afforded to trainees, apprentices, contract workers and agency workers. Case law has also determined that those receiving vocational training and university students on work placements can also be protected.

There are no exemptions for small businesses. 

In certain circumstances corporate bodies will also be protected from discrimination under the Act.

An employee is covered regardless of their length of service and regardless of whether they are part-time or full-time. 

Volunteers are generally not covered but if the volunteer has a contract and so is considered a "worker" or is an intern, they may be covered. Case law indicates that an individual due to transfer to the employer under The Transfer of Undertakings (Protection from Employment) Regulations 2006 will not be considered to be a job applicant or an employee prior to the transfer, and therefore is unlikely to be covered. In such circumstances, if you require further advice, you should speak to your legal advisor.

Job Applicants and Employees

An employer must not discriminate against or victimise a person (job applicant or prospective job applicant):

  • In the arrangements made for deciding to whom to offer employment (this would include the way the job is advertised, the content and format of application forms, physical arrangements, timing and location of interviews, job and person specifications).
  • By not offering them employment.
  • As to the terms and conditions on which employment are offered.

An employer must not discriminate against or victimise an employee:

  • As to the terms and conditions of employment
  • In the way he affords them access, or by not affording access, to opportunities for promotion, transfer or training, or for receiving any other benefit, facility or service.
  • By dismissing them.
  • By subjecting them to any other detriment.

An employer must also not harass an employee or job applicant.

Some particular considerations are explored further below.

Advertising

The following are signs of discrimination in advertising:

  • The advert uses stereotyped words or phrases, or words which indicate an intention to discriminate in relation to a protected characteristic, such as ‘fit’, ‘healthy’, ‘young’ or ‘mature’.
  • The advert deters people with a particular protected characteristic from applying.
  • The advert requires a minimum or maximum number of years of experience.
  • The advert is placed in a newspaper or publication which excludes or disproportionately reduces the numbers of applicants with a particular protected characteristic.
  • The advert sets unnecessary provisions or criteria which would exclude a higher proportion of applicants with a particular protected characteristic.

Interviews

Discrimination often takes place at the interview stage where:

  • Candidates are asked different questions due to the existence of a protected characteristic (for example asking women if they have any children and not asking the same question to men).
  • Questions are asked which are based on stereotypical assumptions.
  • Unnecessary questions, not relevant to the requirements of the job, are asked of the interviewee in respect of domestic circumstances.
  • Reasonable adjustments are not made for disabled candidates in order to ensure that they are not placed at a substantial disadvantage in comparison with candidates who are not disabled. This could include considering whether an applicant (or an employee being redeployed) could be assessed in a different way if they are unable to attend an interview because of their disability.

Clothing and personal appearance

Sex discrimination can occur when the employer insists on enforcing different rules for clothing or appearance for men and women at their place of work.  The approach of the employment tribunal when faced with cases like these is to consider the clothing or appearance rules as a whole, rather than garment by garment. The tribunal is looking to see if the rules are more restrictive for one sex than the other. Employers should take care to ensure dress codes are not based simply on their conventional ideas about the way the sexes should dress.

Employers should also be careful to avoid discrimination on the basis of religious belief in relation to any requirements on dress code in the workplace where the wearing of religious symbols or garments is prohibited. Where an employer is considering implementing such a dress code then careful consideration should be given to the reason why this is necessary so that any potential indirect discrimination resulting from such a policy can be objectively justified.

ACAS have produced guidance on dress codes which can be found at www.acas.org.uk/dresscode.

The Government Equalities Offices has also published new guidance on dress codes and sex discrimination, which case be accessed as follows:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/709535/dress-code-guidance-may2018-2.pdf

Former Employees

Ex-employees can, in certain circumstances, still bring discrimination claims in relation to events that occurred after the termination of the employment relationship.  Discrimination or harassment after the end of the employment relationship (which would have been unlawful if it had occurred during employment) is unlawful if the act of discrimination or harassment arises out of or is closely connected to the employment relationship.

This will cover matters such as discrimination in connection with the provision of references and the discriminatory handling of appeals against dismissals.

Post-employment victimisation is not specifically made unlawful under the Equality Act but the Court of Appeal has held that this was a drafting error and protection must be given.

Who is liable?

Primary Liability

Employers can be liable if they discriminate against job applicants or employees. Principals (end-users of a service) can be liable for discriminating against contract workers. Training providers can be liable for discriminating against those seeking or undertaking vocational training.

Vicarious Liability

For the purposes of the Equality Act, anything done by an employee in the course of their employment will be treated as having been done also by the employer. This vicarious liability applies whether or not the act of the employee was done with the employer’s knowledge or approval. 

Whether or not the discrimination or harassment was done “in the course of employment” will be for a tribunal to determine but clearly manage decisions on employment, related matters will be covered. Acts done at the workplace will also almost always be covered. For conduct at social functions or outside of the workplace the line will be more difficult to draw, factors to be taken into account will include whether the incident took place on the employer's premises, whether the victim or discriminator was on duty, whether the gathering included employees' partners, customers or unrelated third parties, and whether the event took place immediately after work. Some situations may be considered an "extension of employment", for example, a colleague's leaving party, or even informal drinks with colleagues in the pub immediately after work.

However, there is a defence for the employer if they are able to show that they took all reasonable steps to prevent the employee from doing that act, or from doing in the course of their employment acts of that description. This availability of this defence requires the effective implementation and enforcement of appropriate equal opportunities and anti-harassment/bullying policies, with training on those policies having been provided on a regular basis to individual employees and managers. The employer would also need to be able to show that it had taken steps to deal with any complaint including taking appropriate disciplinary action.

Liability for Third-Party Acts

An employee could claim that the inaction by their employer in the face of harassment of the employee by a third party (for example a client, customer, supplier or in some cases an agency worker) was an unlawful act in itself.

Liability for Agents

An employer can potentially be liable to its employees for acts of discrimination or harassment carried out by its agent. If the agent had the employer’s authority it does not matter whether it also had the employer’s approval (or even whether the employer knew of the act). Depending on the circumstances, an agent might be a contractor, consultant, agency worker or employment agency.

Types of Discrimination

The Equality Act deals with various types of discrimination and other unlawful conduct. These types of discrimination can apply to some or all of the protected characteristics. There are some variations depending on which protected characteristic is relevant. The types of discrimination are:

  • Direct discrimination.
  • Indirect discrimination.
  • Harassment.
  • Victimisation.
  • Instructing, causing, inducing and helping discrimination.

In relation to disability discrimination, there are also specific provisions in place concerning discrimination arising from disability and the duty to make reasonable adjustments. These are not covered in this fact sheet but instead in Disability Discrimination [FS3.04].

Direct Discrimination

An employer discriminates against a job applicant or an employee if, because of one of the protected characteristics, he treats the job applicant or employee less favourably than he treats or would treat others.

For example, the job applicant or employee may not be offered an interview or a job, may be offered less favourable terms and conditions of employment, may not enjoy training opportunities, be passed over for promotion or may be selected for redundancy or dismissed due to discriminatory practices. A claim for direct race discrimination could easily arise if statutory immigration checks are only carried out on, for example, prospective workers from an ethnic minority. There is a statutory code of practice on avoiding discrimination while preventing illegal working which contains helpful advice.

In order to claim direct discrimination an employee or job applicant will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs. The exception is in relation to pregnancy or maternity discrimination where there is no need for a comparator at all, see Pregnancy and Maternity Discrimination [FS11.03].

The less favourable treatment must be “because of” the protected characteristic to be directly discriminatory. This means that the protected characteristic must be the conscious or sub-conscious reason for the treatment. It is not a defence for an employer to claim that the discrimination was not intentional.

The treatment must be because of the protected characteristic, regardless of whether it is the victim's protected characteristic that is the reason for the treatment. The following can amount to direct discrimination:

  • Associative Discrimination - An employer treats an employee less favourably because of the protected characteristic of someone with whom the employee associates; for example, because the employee has a homosexual relative. The exception is where the protected characteristic is marriage or civil partnership status, where the discrimination must be because the victim is married or a civil partner.
  • Perception Discrimination - An employer treats an employee less favourably because it wrongly perceives that the employee has a protected characteristic; for example, the employer rejects the employee for promotion because it thinks she is pregnant when in fact she is not.

In respect of most protected characteristics direct discrimination cannot be objectively justified, direct age discrimination is the exception to this rule.  Direct age discrimination can be lawful if it amounts to a proportionate means of achieving a legitimate aim. For full details see Age Discrimination [FS15.02].

Direct discrimination may be lawful if it is covered by one of the exceptions set out in the Equality Act, these include occupational requirements and positive action. The exceptions are covered in more detail below.

In the case of religious discrimination, case law has shown that there will be no direct discrimination where the reason for the treatment is the discriminator's religion or belief, rather than that of the person being discriminated against. 

Indirect Discrimination

It is unlawful for an employer to apply a provision, criterion or practice (PCP) that disadvantages job applicants or employees with a protected characteristic, unless there is objective justification. Indirect discrimination is treatment that may be equal in the sense that it applies to all job applicants or employees but which is discriminatory in its effect on persons who share a protected characteristic such as race or sex.

A necessary ingredient of an indirect discrimination claim is that the employer applies a PCP. This does not require there to be a formal policy in place, it is enough for there to be a management decision which affects the individual. Employers must ensure that they do not have policies, rules, selection criteria or other practices that have the effect of disadvantaging employees or job applicants with a particular protected characteristic, unless such PCP can be objectively justified.

A common example would be a requirement for an applicant for a particular role to work full-time. This would disadvantage women who are more likely to want or need to work part-time due to domestic or childcare responsibilities. This requirement would be indirectly sex discriminatory unless it could be objectively justified. A further example would be if employees were required to speak fluent English. Such a requirement would place those for whom English was not their first language at a disadvantage, which might be indirectly discriminatory on race grounds. Employers should be alert to the many forms of indirect discrimination which are more subtle than the above examples.

If an employee can show that a PCP puts persons with a shared protected characteristic (including themselves) at a particular disadvantage the burden then shifts to the employer to prove that the PCP is objectively justified. Objective justification involves the employer establishing a legitimate aim (real business need), that the PCP is a proportionate means of achieving that aim and that there are no less discriminatory means available to achieve that aim.

Indirect discrimination applies to all the protected characteristics, except for pregnancy and maternity. However, indirect sex discrimination may apply in pregnancy and maternity situations.

Recent European case law has indicated that a person may claim indirect discrimination even where they do not possess the protected characteristic that has given rise to the discrimination; an individual may suffer disadvantage alongside a disadvantaged group without sharing the characteristic of the group. This is not the case under UK legislation, but given that the UK courts are under an obligation to give effect to a principle of EU law this is likely to have an impact on domestic law.

Harassment

There are three definitions of harassment under the Equality Act:

  • The general definition of harassment "related to" a protected characteristic, which applies to all protected characteristics (other than marriage and civil partnership, and pregnancy or maternity).
  • Conduct of a sexual nature (including but not limited to unwelcome sexual advances, requests for sexual favours, engaging in other unwelcome verbal, non-verbal or physical conduct of a sexual nature, subjection to obscene or other suggestive comments and sexual jokes or images).
  • Less favourable treatment because of an employee's rejection of or submission to harassment of a sexual nature or harassment related to sex or gender reassignment.

In terms of the general definition of harassment, a person harasses the victim if they engage in unwanted conduct related to a protected characteristic, and the conduct has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. 

In respect of the other two forms of harassment under the Equality Act, there is also a requirement for the unwanted conduct to have the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. 

In deciding whether conduct has the effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, employment tribunals will take into account the victim’s perception, the circumstances of the case and whether it is reasonable for the conduct to have that effect. This allows claims by “hypersensitive victims” to be rejected where a tribunal deems that it was not reasonable for the conduct to have the effect.

Employment tribunals will give particular regard to the subjective perception of the person making the complaint. Thus, for example, where a woman regards as sexual harassment conduct to which most other women would not take exception, provided the employee has made it clear the conduct is unwelcome, any repetition may amount to harassment.  However, it is important to remember that one-off incidents are capable of being harassment, the victim does not always need to make the harasser aware that the conduct is unwanted. Many forms of conduct are objectively hostile or offensive and these do not require the employee to indicate they are unwelcome before they may constitute harassment.

Harassment may be verbal, non-verbal or physical.  For example, for security guards to search every black employee and not every white member of staff could be regarded as racial harassment and putting crucial equipment on a high shelf which can only be reached by tall people (mainly men) could be regarded as harassment related to a person’s sex.

Harassment may comprise intentional conduct which is obvious but it can also be unintentional or subtle, such as the use of nicknames, telling jokes, teasing, engaging in banter or excluding a co-worker. The key is to determine whether this conduct was by reason of, or related to, a protected characteristic. An example may be an employee being excluded from the after-work drinks culture because his religious beliefs do not allow him to consume alcohol.

It is possible to claim harassment based on association or perception as the victims of harassment do not need to possess the protected characteristic themselves. For example, a person who is harassed because of their spouse’s race, or a person who is harassed because they are wrongly perceived to be homosexual. 

In addition, an employee could complain about behaviour that they find offensive even if it was not directed at them but they witnessed it, for example racist jokes or banter which may offend colleagues regardless of their own race. 

Victimisation

Victimisation takes place when a job applicant, employee or ex-employee is subjected to a detriment because they have done a protected act or the employer believes they have done, or may do, a protected act.  Protected acts include:

  • Bringing discrimination proceedings under the Equality Act.
  • Giving evidence or information in connection with such proceedings.
  • Doing any other thing for the purposes of or in connection with the Equality Act.
  • Making an allegation that the employer or any another person has contravened the Equality Act (for example to the employer or to an organisation such as the Equality and Human Rights Commission).
  • Acts in relation to relevant pay disclosures.

There is no protection from victimisation for persons that make allegations or give evidence that they know to be false i.e. in bad faith. A person acting in good faith, even if mistaken, is protected.

It is not necessary for a victim of victimisation to show that the victimisation was deliberate. If the protected act was the conscious or sub-conscious reason for the treatment this will be unlawful.

Some typical examples of where employers should be particularly vigilant to allegations of victimisation are; job applications from former employees who raised allegations of discrimination whilst in employment, or individuals who raise discrimination claims and who remain in employment. In these situations employers should be aware of the potential for victimisation claims and ensure that any decisions taken in do not amount to a detriment. 

There is no time limit within which victimisation must occur after the victim has done a protected act. For example a detriment (such as decision not to promote) which occurs many years after the protected act.

An employer who takes honest and reasonable steps to protect itself in litigation will not generally be liable for victimisation.

Instructing, causing, inducing or knowingly helping discrimination

It is unlawful for an employer to instruct, cause, induce or help someone (for example an employee or agent) to discriminate against, harass or victimise another person, or to attempt to do so. Claims could be brought against the employer by either or both of the employee who was instructed, caused or induced to discriminate against the victim and the victim of the discrimination.

Objective Justification

It is possible to avoid liability for some discrimination claims where the employer is able to show that the treatment is objectively justified. In order to satisfy the objective justification test the employer must show that the treatment was a proportionate means of achieving a legitimate aim.

Objective justification can be relied on as a defence to claims of indirect discrimination (see below), direct age discrimination (see Age Discrimination [FS15.02]), and discrimination arising from disability (see Disability Discrimination [FS3.04]).

Legitimate Aim

A legitimate aim must be a real business need. This means that there is unlimited scope on what can potentially constitute a legitimate aim as each employer will have different business needs.

There must be evidence that the employer’s actions actually contribute to the pursuit of the legitimate aim.

A common example of a legitimate aim in the context of objective justification is where treatment is due to a legitimate health and safety consideration. Any action taken by employers must be proportionate to the risk and must not be based on generalisations or stereotyping. Examples including not employing particular age groups, sexes or those with disabilities in high risk roles.

Costs saving cannot, on its own, amount to a legitimate aim capable of justifying indirect discrimination, although cost considerations may be taken into account along with other factors. This is often referred to as the "cost-plus" rule.

Proportionate

The actions of the employer (even if in connection with a legitimate aim) must be a proportionate means of achieving that aim to amount to objective justification. The actions or the PCP must be appropriate and necessary, therefore strike the right balance between the importance of the aim and the “discriminatory effect”. If the same objective could be achieved by less discriminatory means then the action or PCP will not be proportionate.

The "discriminatory effect" should be looked at both quantitatively (the numbers and proportion of persons affected) and qualitatively (the impact on those individuals and how lasting it is). The impact on the claimant may be taken into account, but proper attention must be paid to whether this is typical of the impact on other people as well.        

Exceptions

There are a number of general exceptions which apply across most types of discrimination. If an exception applies an act of discrimination that would have been prohibited will be lawful. These general exceptions are:

  • Occupational requirements.
  • Positive action.
  • Statutory provisions.
  • National security.
  • Providing benefits to the public.

The Equality Act also sets out specific exceptions that apply only to a particular protected characteristic. For information on the numerous exceptions that apply to age discrimination see Age Discrimination [FS15.02].

Occupational Requirements

There are a number of occupational requirement exceptions:

  • The general occupational requirement exception – applies where, having regard to the nature or context of the work, being of a particular sex, race, disability, religion or belief, sexual orientation or age (or not being a transsexual person, married or a civil partner) is an occupational requirement.
  • Employment for the purposes of an organised religion. This allows an employer to apply a requirement, in relation to employment for the purposes of an organised religion, to be of a particular sex or not be transsexual, or a requirement related to marriage or civil partnership (including former marriage/civil partnership) or sexual orientation, but only if either (a) the requirement is applied so as to comply with the doctrines of the organised religion, or (b) because of the nature or context of the employment, the requirement is applied so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers. 
  • Employers with a religious ethos. This enables employers to impose an occupational requirement in respect of employment where the organisation has an ethos based on religion or belief i.e. a requirement to be of a particular religion or belief but only if, having regard to that ethos and the nature or context of the work, being of that particular religion or belief is an occupational requirement, and applying the requirement is a proportionate means of achieving a legitimate aim.
  • Armed forces. An employer can require a job to be done by a man, or by someone who is not a transsexual person, if this is a proportionate means of ensuring the combat effectiveness of the armed forces.
  • Employment services. An employment service provider can treat a person with a protected characteristic less favourably if the treatment relates to work that could be refused to that person because of an occupational requirement.

In relation to the general occupational requirement exception, an employer does not contravene the discrimination provisions by applying in relation to the job a requirement to have a particular protected characteristic if he can show that, having regard to the nature and context of the work:

  • It is an occupational requirement,
  • The application of the requirement is a proportionate means of achieving a legitimate aim,
  • The person to whom the employer applies the requirement does not meet it (or the employer has reasonable grounds for not being satisfied that they meet it).

With gender reassignment and marriage and civil partnership, the references to a requirement are to a requirement not to be a transsexual person or not to be married or a civil partner.

For an employer to be able to rely on this exception the requirement must be crucial to the post (and not merely one of several factors) and it must relate to the nature of the job, not the employing organisation.  The employer also has to show that applying the requirement is a proportionate means of achieving a legitimate aim, so the test will not be satisfied if it would have been reasonably possible to achieve the result in some other way.

Examples of occupational requirements include: The need for authenticity or realism might require someone of a particular race, sex or age for acting roles or modelling jobs; Considerations of privacy or decency might require a changing room or lavatory attendant to be of the same sex as those using the facilities.

The occupational requirement defence only applies to direct and indirect discrimination, not to claims of harassment or victimisation.

Positive Action

The Equality Act allows for lawful “positive action” where persons who share a protected characteristic suffer a disadvantage in connection with the protected characteristic, have particular needs or are disproportionally under-represented. Employers can take certain actions to address these problems without opening themselves up to discrimination claims brought by people without the relevant protected characteristic. Employers, however, are not obliged to take positive action.

Statutory Provisions

There are statutory provisions outside of the Equality Act which employers may be obliged or allowed to comply with and which oblige or allow discriminatory treatment to take place. If this exception applies an employer will not fall foul of the Equality Act if they do anything related to certain protected characteristics that they must do because of a specified requirement.

Examples include: An employer can lawfully dismiss a disabled employee if health and safety regulations leave it with no other choice; an employer can lawfully refuse to employ someone to drive a large goods vehicle who is not old enough to hold a LGV licence.

National security

A discriminatory act will not be unlawful if it is done for the purpose of safeguarding national security, and it was proportionate for that purpose.

Providing benefits to the public

Where an employer is concerned with the provision of benefits to the public, or to a section of the public, an individual who is denied those benefits for a discriminatory reason will not generally have the right to bring a discrimination claim in an employment tribunal merely because they happen to be an employee of the provider.

Equality and Human Rights Commission (EHRC)

The Equality and Human Rights Commission (EHRC) is a statutory body that began operating from 1 October 2007 and its purpose is to reduce inequality, eliminate discrimination and protect human rights.  It has brought together the previous work of the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission into one central body. 

The EHRC has taken on all of the powers of the three previous Commissions, as well as having additional powers to enforce legislation more effectively and promote equality for all.  This means it is responsible for enforcing the Equality Act in relation to all of the protected characteristics.  It is also responsible for promoting awareness and understanding of human rights and ensuring compliance with the Human Rights Act 1998.

The EHRC has the following remit:

  • Advising employers and service providers on good practice and the promotion of equality and good relations.
  • Conducting inquiries and carrying out investigations.
  • Providing advice and information on rights and equality laws.
  • Campaigning on issues affecting the diverse groups in society that can suffer discrimination.
  • Making arrangements for conciliation to assist with disputes.
  • Assisting individuals who believe they have been the victim of unlawful discrimination, if the case is of some complexity or raises a question of principle.
  • Providing grants.   

The EHRC has the power to issue codes of practice to ensure compliance with the Equality Act as well as to promote equality of opportunity.

The EHRC, if it thinks fit, is empowered to conduct a formal investigation for any purpose connected with the carrying out of its duties, including when it suspects that a person/employer has committed an unlawful act. Suspicion as to the commission of an unlawful act may arise from cases being heard in courts or tribunals, as a result of reports to the EHRC from victims of harassment or discrimination, from trade unions, as well as from inquiries conducted by the EHRC itself. As a result of an investigation, the EHRC may make recommendations to the employer for changes in their procedures.  The EHRC may issue a non-discrimination notice during its investigations if it is satisfied that an employer has committed or is committing an unlawful discriminatory act or practice.  The non-discrimination notice may require the employer not to commit any such acts and to change their practices and other arrangements.  If the notice is not complied with by the employer, the EHRC may apply to the county court for an injunction.

Equal Opportunities Policies

Although employers are not legally obliged to have an Equal Opportunities Policy, this is highly recommended. The EHRC recommends that employers have an Equal Opportunities Policy and therefore lack of one could result in a prima facie discrimination case to be answered.

This policy is also recommended to set out clearly to employees what the employer expects from them and what standards of conduct they can expect from others (and what to do if they are treated other than in accordance with those standards).

A properly drafted and implemented (with proper training and publicity/visibility) policy can also assist employers to show that they took all reasonable steps which may assist to defeat a claim for discrimination due to the vicarious liability for acts of employees.

See Equal Opportunities Policy for an example.

Claims under the Equality Act

A job applicant or employee who believes they have suffered unlawful discrimination, harassment or victimisation can complain to an employment tribunal.

There is a reverse burden of proof, which means that once a claimant has proved facts giving rise to a prima facie case of discrimination, harassment or victimisation, the burden of proof then shifts to the employer to show he did not commit an act of unlawful discrimination, harassment or victimisation.

Questions Process

Employees and job applicants have a legal right to submit questions to employers to help them to determine whether or not they have a claim. The old statutory discrimination questionnaire procedure has been abolished and replaced with a more informal process which is set out within ACAS Guidance called ‘Asking and responding to questions of discrimination in the workplace’. Employers who receive such questions from employees or job applicants should consider the ACAS Guide and obtain legal advice before responding.

ACAS have produced guidance on "Asking and responding to questions of discrimination in the workplace".  This is informal guidance but, again, advice should be sought if questions have been raised.  For further information please see:

http://www.acas.org.uk/index.aspx?articleid=4971

Time Limits

The normal time limit for submitting a discrimination claim is 3 months from the date of the act complained of. In cases involving a series of acts rather than a stand-alone act then the time limit is 3 months from the last act in the period over which the conduct has taken place. Where the contract of employment includes a term making the contract an unlawful act, the act shall be treated as extending throughout the duration of the contract.

A deliberate omission by the employer shall be treated as done when the person in question decided upon it.

The Tribunal has the ability to extend the time limit where it considers this to be just and equitable.

Mandatory ACAS Early Conciliation

Mandatory ACAS Early conciliation applies to discrimination claims and therefore a Claimant will have had to approach ACAS for conciliation prior to submitting a claim. ACAS Early Conciliation will have an effect on the applicable time limits for submission of and responding to discrimination claims and advice should be taken if contact from ACAS or a claim is received.

Compensation and Remedies

Compensation for discrimination, harassment or victimisation under the Equality Act is unlimited. The amount of compensation awarded will normally include a sum to represent financial losses (both past and future) and an award for injury to feelings (based on Vento guidelines and subsequent increases, the current maximum guideline award for injury to feelings is £44,000, although in the most exceptional cases the sum may be more than this). This sum is subject to regular inflationary increases.

Compensation in discrimination claims can be affected by the ACAS Code of Practice on Disciplinary and Grievance Procedures. The tribunal has a discretion to increase or reduce an award by up to 25% where the employer or employee has unreasonably failed to comply with the Code. Therefore, if the tribunal considers that an employee has unreasonably failed to raise a grievance concerning the acts of discrimination complained of, it can reduce any compensation awarded to them if they are successful. On the other hand, if an employer has unreasonably refused to hear a grievance then compensation could be increased.

A tribunal can apportion the liability for any compensation awarded, amongst the parties deemed responsible for the acts and/or omissions of discrimination, victimisation or harassment. The tribunal has discretion to apportion the liability as it sees fit. This means that named individuals, as well as employers, can find themselves subject to making a financial payment to an employee bringing a successful claim in a tribunal. An award for compensation may be made against an employer and employee jointly, each is therefore liable for the entire award of compensation.

Compensation will not always be awarded. in cases of unintentional indirect discrimination, the tribunal must first consider whether making a declaration of the rights of the parties or recommendation (or both) would suffice.

The Employment Tribunal has the power to make recommendations that benefit the claimant.. The penalties for the employer for failure to comply with recommendations are limited, but in certain circumstances may result in an increase in compensation payable to the claimant or a decision to award compensation by the tribunal where it had not previously.

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.