Employment Discrimination at Work
Knight-Webb Solicitors have particular expertise in handling complex discrimination claims.
A claimant or potential claimant in a discrimination claim should consider whether to serve a questionnaire on the employer to obtain statistical and other information, which may be relevant to the claim (see ACAS Guidance on asking and responding to questions of discrimination in the workplace) .
Under the Equality Act 2010, direct discrimination, indirect discrimination, victimisation and harassment because of age in the sphere of employment and vocational training is prohibited. Direct discrimination can also arise where a person is discriminated against because they are perceived to be a certain age or age group. Employers may also be responsible for the acts of their agents, as well as the acts of other employees.
The Act protects workers from age discrimination in recruitment, employment terms and conditions, promotions, transfers, dismissals and vocational training. However, the Act provides that direct and indirect discrimination may be justified.
The Coalition government has abolished the default retirement age from 1 October 2011, although a compulsory retirement age may in certain circumstances be justified.
Discrimination on the grounds of sex in the sphere of employment has been unlawful since 1975. The current legislative provisions are contained in the Equality Act 2010.
There are four main ways in which a person may discriminate against another: direct discrimination, indirect discrimination, harassment and victimisation.
Direct discrimination occurs where a person is treated less favourably whether because of sex or another protected characteristic. There is no need to show motive or intention behind the discriminatory treatment; discrimination can be unconscious.
Indirect discrimination arises where an employer’s policies or practices place a woman (or man) at a substantial disadvantage, and cannot be justified.
Sexual harassment is wide in scope and covers both situations where the harassment relates to sex (for example sexual banter about women which a female employee finds offensive) or where the harassment is because of sex (where the harassment is directed at the woman herself). It is conduct which violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for a woman.
Victimisation is the protection against retaliation and would cover, for example, a situation in which an employee is punished for having made a complaint of sexual harassment.
Pregnancy and maternity discrimination is unfortunately prevalent in the workplace and the most common form of discrimination which we are asked to advise on. Common scenarios are women who find themselves being made redundant whilst on maternity leave or demoted on their return. We have negotiated sizeable settlement packages and brought successful claims against City institutions and others on behalf of women who find themselves in these situations. We also advise employers facing allegations of maternity discrimination.
It is unlawful for a person to discriminate on racial grounds against another person in an employment context. The law defines racial grounds as including race, colour, nationality or ethnic or national origins.
It is unlawful to discriminate against disabled persons in employment and other areas. A person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out day-to-day activities.
Disability discrimination may take place in any of these ways: direct discrimination, disability-related discrimination, harassment, victimisation or by failing to make reasonable adjustments. If working practices or features of the premises put an employee at a substantial disadvantage compared with a non-disabled employee, the employer must make reasonable adjustments to remove or minimise the disadvantage. This places a positive duty on employers to remove barriers to the effective participation in the workforce of those with disabilities. In deciding whether reasonable adjustments have been made, several factors are taken into account including the nature of the adjustment, the cost, the impact of the adjustment and the resources of the employer. The Equality and Human Rights Commission Employment Statutory Code of Practice, which tribunals must take into account if it appears relevant, contains a non-exhaustive list of potential adjustments that employers might be required to make. As with other types of discrimination, the obligation extends not only to employees but also to job applicants.
It is unlawful for an employer to subject a worker to a detriment or dismissal for making a protected disclosure. Such a dismissal will be automatically unfair and there is no qualifying period of employment.
A qualifying disclosure is information, which in the reasonable belief of the worker shows at least one of the following:
- that a criminal offence has been committed, is being committed or is likely to be committed,
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
- that a miscarriage of justice has occurred, is occurring or is likely to occur,
- that the health or safety of any individual has been, is being or is likely to be endangered,
- that the environment has been, is being or is likely to be damaged, or
- that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.