Whilst we now have the benefit of one piece of legislation covering discrimination, the Equality Act 2010, it remains a challenging employment law area for employers. It is important to consider what is happening in your business regarding behaviour to and between employees. If an employee raises a grievance in relation to discrimination, this can be serious.
Who and what is covered?
Discrimination laws protect potential, current and former workers (wider than employees) and covers:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
These are called ‘protected characteristics’.
What is discrimination?
There are four types of discrimination. These are:
Direct – this is where A treats B less favourably than others because of a protected characteristic. For example, dismissing them on the grounds of their disability or sex.
Indirect – this is where, whilst the employer’s acts, decisions or policies are not intended to treat anyone less favourably, in practice they have the effect of disadvantaging a group with a protected characteristic. For example, an employer’s requirement for full-time working could disadvantage women, who are likely to have the greatest childcare responsibilities, and could therefore be indirectly discriminatory. Employers can sometimes defend indirect discrimination. In this example the employer would need justify (as defined by law) the need for a full-time worker.
Harassment – This is where A engages in unwanted conduct (related to a protected characteristic) which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. For example, shunning a co-worker because he is gay (or perceived to be gay), or taking part in racist banter that might affect colleagues (regardless of their race).
Victimisation – This is where an employer subjects an employee to a detriment because the employee has done (or might do) things that are called a ‘protected act’. This act can include bringing discrimination claims or complaining about harassment. For example, drafting a bad reference because they had raised a grievance about harassment.
What happens if we get it wrong?
One of the challenges for employers is that you can be liable for acts of your workers, agents and even third parties. This is made more stressful by the fact that when compensation is payable, not only is there a right to claim injury to feelings (this is not available for basic unfair dismissal) but there is also no cap on the amount of compensation available (unlike basic unfair dismissal).
What next? How can we help you?
If a difficult situation arises then do get in touch. Your employment solicitor will talk through what can be done to limit any exposure to litigation and/or compensation. We can also help you defend any employment tribunal claims brought.
In addition, equality and diversity policies are one of the key policies we recommend employers have. We can review, update or draft one for you. We can also support you with any training.
To provide some useful information, whilst online, we have employment law checklists available. You can also sign up for regular updates.
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Are you an employee looking for advice on discrimination? Please see here or arrange a meeting. We cover Guildford, Godalming or the surrounding area.