Employers should make sure that they are well placed to deal with discrimination in the workplace. Employment law solicitor Victoria Othen examines the key factors to take into consideration.
You do not need to be employed to bring a discrimination case
Unlike other employment legislation, the Equality Act 2010 protects the majority of those who work, in whatever capacity. Indeed, it also protects job applicants (who may never commence work) and previous workers who are, for example, given a poor reference.
It comes as a shock to many employers that, as well as employees and workers (as defined by the Employment Rights Act 1996), the genuinely self-employed also enjoy protection, so long as they are personally obliged to perform the work for the end user. Agency and contract workers are similarly protected.
Discrimination claimants do not need to have a protected characteristic
In cases of direct discrimination, claimants suffer discrimination because of a protected characteristic. The protected characteristic need not belong to them. Indeed, it need belong to no one.
If a worker is treated less favourably because her partner is black, this is direct discrimination. If a worker receives homophobic taunts because he is perceived to be gay (even though he is not), this is direct discrimination. The only exception to this principle is in cases of discrimination on the basis of marriage or marital status.
Unlike other employment legislation, the Equality Act 2010 protects the majority of those who work, in whatever capacity.”
Any written question concerning discrimination can be a discrimination questionnaire
Discrimination questionnaires should be answered within a certain timeframe and in a certain manner. Tardy or evasive/equivocal responses can allow employment tribunals to draw an adverse inference in subsequent litigation. However, the relevant statutory framework applies to any written question posed by a potential litigant; it need not be framed in a prescribed document (s.138 Equality Act).
The effect of the provision is that any written complaint of discrimination should be taken seriously by employers and blanket denials can be counterproductive.
Employers can be liable for the harassment of their clients or customers
Section 40 of the Equality Act states that where an employer has not taken “reasonably practicable steps” to prevent a third party from harassing one of its workers during the course of their employment, it can be liable for that harassment. Liability will arise where the employer knew that harassment had occurred on at least two other occasions.
Intention has little to do with discrimination
When defending claims, employers often try to show that they did not intend to discriminate. Witness statements may deny any intention to treat female employees differently, for example, or that they do not tolerate racist attitudes in the workplace. Such assertions may be pointless.
It is true that in direct discrimination cases, an employee must show less or unfavourable treatment because of a protected characteristic so there is a link between the two. In cases of indirect discrimination though, it is the effect of the treatment that is scrutinised, irrespective of the employer’s intentions.
A tribunal will find for a claimant if his treatment put him/her, and others who share the same protected characteristic as him/her, at a disadvantage. In those circumstances, the only means of defending the discrimination claim would be for the employer to prove that the treatment in question was objectively justifiable.
In most cases, it is not possible to defend a claim of direct discrimination.”
It is always possible to defend a claim of age discrimination
In most cases, it is not possible to defend a claim of direct discrimination. Once a tribunal is satisfied that a worker has been treated less/unfavourably because of a protected characteristic, the claim will succeed.
In cases of direct age discrimination, an employer can always argue that the treatment in question was a proportionate means of achieving a legitimate aim. The prevalence of recent litigation concerning this specific issue is surely set to increase now that the Government has finalised its plans to abolish the default retirement provisions.
Disabled workers do not have an automatic right to adjustments in the workplace
It is relatively common for disabled workers to ask for adjustments to be made to accommodate their disability. Employers do have a duty to make reasonable adjustments for disabled workers but only where a workplace provision, criterion, practice, physical feature or lack of auxiliary aid puts them at a “substantial disadvantage”.
Section 212(1) of the Equality Act further defines the meaning of “substantial” to mean “more than minor or trivial”. Employers would be well placed to remember the finer details of these provisions when considering their duties to disabled workers.
It is unlawful to refuse to appoint a temporary worker who is specifically recruited to cover a period of maternity leave because her own pregnancy will prevent her from doing this
Pregnant workers are protected by s.18 of the Equality Act. The section prohibits “unfavourable” treatment during the “protected period“. This period starts with pregnancy and ends after maternity leave. The use of the word “unfavourable” (rather than “less favourable” as with other protected characteristics) means that no comparison with other employees is required.
There is no defence available against this form of direct discrimination. Employers that experience problems with the recruitment or employment of pregnant workers should always take legal advice and should avoid making any hasty decisions.
An equal-pay claimant can compare pay to someone doing a totally different job
A claimant in an equal-pay case must compare his or her pay to a more highly paid employee of the opposite sex. Most employers are familiar with the straightforward concept that male and female employees should receive the same pay for doing the same work.
An equal-pay claimant can compare pay to someone doing a totally different job.”
However, the Equality Act provides that they are also entitled to equal pay for similar work or work of “equal value”. The Act goes on to further define what is meant by this term by referring to the “demands” made on the claimant and his or her comparator by the jobs that they do.
It is possible, for example, for care workers to compare their pay to that of manual workers, or clerical workers to warehouse operatives. A successful claimant is entitled to compensation representing the difference in pay for the last six years as well as pay parity in future.
A disability that seriously affects work performance does not necessarily render a worker “disabled” under the Equality Act
Section 6 of the Equality Act provides that the “impairment” from which a disabled worker suffers must have a “substantial and long-term adverse effect on his ability to carry out day-to-day activities”.
When asked to determine a disability, an employment tribunal is bound to focus on whether or not a claimant is capable of performing such day-to-day activities rather than whether or not he is capable of performing his own job. The two are obviously linked and a worker’s ability to take part in professional life should be taken into account. However, it stands to reason that the more specialised and unusual the work, the less relevant it will be to the question of whether or not he is a “disabled” worker.
Victoria Othen is an employment law solicitor with more than 12 years of experience in specialist private practice. She is currently a freelance writer and non-practising solicitor.
XpertHR provides a model policy on equal opportunities in the workplace.