Business Law

Discrimination in the workplace

Legislation against discrimination in the workplace has developed over the last 35 years and now covers the following categories of discrimination:-

  •    Sex
  •    Sexual Orientation
  •    Gender Re-assignment
  •    Race, Nationality and Ethnic Origin
  •    Religion or Belief
  •    Age
  •    Disability
  •    Marriage & Civil Partnership
  •    Pregnancy & Maternity

Pregnant women have protection under the Equality Act, 2010 (‘the Act’) which came into force on the 1st October 2010.

The Act also places extended duties on businesses supplying goods or services to the public sector. As it is anticipated that due to cut backs in the public sector there will be an increase in outsourcing by central and local government, those businesses wishing to tender for work will need to be aware of the Act and its requirements.

The Act also contains new provisions relating to the following:-

  • Positive Action
  • Pre-Employment health Checks
  • Equal Pay
  • Pay Secrecy
  • Private Members Club
  • Breast Feeding

The Act created the nine ‘Protected Characteristics’, listed above.

We set out below a basic guide to what conduct is considered to be discriminatory and therefore unlawful under current law and under the Act. 

Direct Discrimination

The existing law makes direct discrimination unlawful. Direct discrimination occurs when someone is treated less favourably than another person because of a Protected Characteristic.

Associative Discrimination

This takes place when someone suffers direct discrimination because they associate with a person who possesses a Protected Characteristic. This is a new protection in relation to age, disability, gender re-assignment and sex discrimination. It exists in current law relating to race, religion or belief and sexual orientation. It does not apply to marriage and civil partnership or pregnancy or maternity.

Discrimination by Perception

This is when someone suffers direct discrimination because others think they possess a Protected Characteristic. This is new to disability, gender re-assignment and sex discrimination but already exists in the current law relating to age, race, religion or belief and sexual orientation. It does not apply to marriage or civil partnership or pregnancy or maternity.

Indirect Discrimination

This happens when there is a rule or policy which applies to everyone, but which disadvantages those with a Protected Characteristic. For example if an employer required employees to be over six foot tall, this would be indirectly discriminatory against women and Indian/oriental persons. This is because of a greater proportion of women will be under six foot tall than men and a considerably smaller proportion of Indian/oriental persons are over six foot tall than, for example, Caucasian or African persons.

This is a new protection in the areas of disability and gender re-assignment but already exists as protection against age, race, religion or belief, sex, sexual orientation and marriage and civil partnership discrimination. It does not apply to pregnancy or maternity.

Harassment

Harassment in the context of discrimination arises where one person engages in unwanted conduct towards another. This conduct is likely to violate another’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for another. Employees can complain of behaviour they find offensive, even if it is not directed at them.

This change applies to all Protected Characteristics save for sex discrimination, where the old law still applies, and marriage and civil partnership and pregnancy and maternity where it does not apply.  

Harassment by a Third Party

Under the Act employers are made potentially liable for harassment of their employees by third parties they do not employ.

This protection already existed under sex discrimination law. However, it is new to all other areas, save for marriage and civil partnership and pregnancy and maternity where it does not apply.

Victimisation

This occurs where someone is treated badly because they have raised or supported a complaint or grievance under the Act.

The above is a general outline of the law on discrimination, which is an extremely complex area. To protect against claims of discrimination, which can be very expensive, employers should:

  • Understand their duties and obligations to avoid discriminatory practices and protect employees from suffering discrimination
  • Have policies and procedures in place to enforce these duties and obligations
  • Train their staff in the operation of those policies and procedures
  • Document the policies and procedures and training.

We can help you deal with these issues, and if you have any questions or queries regarding this article, or need assistance, please contact:

Marina Vincent on 020 8422 5678