DISCRIMINATION ISSUES

Workers are protected by law from discrimination, harassment and victimisation. These Discrimination laws effectively apply to decisions taken because of age, sex, race, sexual orientation, disability and pregnancy (these are called ‘Protected Characteristics’). If employee raise an issue connected with discrimination laws, as long as he does so in good faith (these are called ‘Protected Acts’) an employer must not victimise or subject him to less favourable treatment, like demotion, relocation, or bullying. There is no qualifying period for discrimination claims. You will need to present facts from which inferences of discrimination might be made.

Age Discrimination:

Under the Equality Act 2010 employers must not discriminate against workers by treating them less favourably because of their age. This could be by making stereotypical assumptions- for example ‘older people are less inclined to change’- or assuming that an employee is going to want less pressure at work.
If an employer makes comments which are clearly discriminatory, establishing a case may be easier but normally a worker will have to establish facts from which inferences of discrimination may be drawn. These could include: exclusion from meetings or social events, withdrawing the better tasks and roles or patronising comments.

Age discrimination claims can lead to larger pay outs. There is no upper limit on compensation and a tribunal may well find that it is very difficult for an older worker to find another job. Injury to feelings tend to be at the higher end.

Disability Discrimination

Workers with serious medical problems may have protection under the Equality Act 2010. The starting point is to look at the medical condition because not all medical conditions are a disability. The condition must have a substantial adverse effect on the worker’s ability to carry out normal day to day activities. The Code of Practice offers guidance and makes it very clear that stereotypes and assumptions are to be avoided.

Disability rights include:

  • Reasonable adjustments– an employer must consider steps to help workers remain in employment. The adjustments have to be reasonable- proportionate and likely to work. Examples would include: seeking medical advice, changes to hours, adaptions to work stations or even changes to performance procedures.
  • Direct discrimination– an employee must not be treated less favourably than other non-disabled workers because of their protected characteristic (eg: sex, race or disability). This normally requires a comparator- a worker in a similar position but sometimes a hypothetical comparator is accepted.
  • Victimisation– a worker who raises issues about disability related rights must not be subject to detriments.
  • Discrimination arising from disability– this is a more recent right and protects employees from discrimination for things connected with the disability such as the need to take time off for medical appointments.

Disability cases can result in high value awards because it tends to be harder for disabled workers to find another job and stress can often make the condition worse.

Pregnancy discrimination:

Employers are under positive duty to protect employees who are pregnant for example by making sure the working environment does not harm the health of the mother or child.

Awards of compensation can be higher because this is discrimination and can also include an amount for ‘injury to feelings’ or ‘aggravated damages’ (for example by failing to investigate allegations of discrimination).

Race & Religious Discrimination:

Race and religious belief are both protected characteristics under the Equality Act 2010. Employers who treat workers (not just employees) less favourably because of race or religious belief might be discriminating.

Workers who raise concerns about related legal rights must not be subject to detriments as this can amount to victimisation.

Sex Discrimination:

Employees must not be treated less favourably because of their sex. Examples of cases we have dealt with have included:

  • Allocation of jobs under the ‘old boys’ network’
  • Sexual harassment- unwanted or degrading behaviour at work
  • Dismissal of a senior banker in circumstances where the same facts applied to a male colleague

With all discrimination claims, the worker must set out primary facts from which inferences of discrimination may be drawn. It is unlikely that clear evidence of discrimination will be available but if the circumstances of the person complaining against can be compared with another employee (usually a female compared to a male) and there is no ‘innocent explanation’ that is normally all that is required. Workers should normally use the employer’s grievance procedures first.

Discrimination awards tend to be higher because of injury to feelings can be compensated.

If you require advice and assistance regarding discrimination claims in the workplace, we can help.