24th February 2022
Contents
24th February 2022
Running and managing a business effectively involves ensuring that employees or workers employed by the organisation enjoy a good working environment. Such an environment helps keep morale high, subsequently leading to greater workforce productivity. Employers have a duty to provide a conducive working environment for their employees. This can be done by through policies such as an Equal Opportunities Policy. Employers can maximise the conduciveness of the workplace environment by cultivating an organisational culture where discrimination is not tolerated.
In simple terms, discrimination will occur where an employee is treated unfairly or unfavourably because they have a particular characteristic. Because discrimination can take many different forms, there are nine characteristics that are protected under UK law known as the "Protected Characteristics". The Protected Characteristics rule means that if an employee is discriminated based on any of these characteristics, they will have the right to bring a legal claim against the employer for discrimination. These characteristics recognised by law are:
If an employee is treated unfairly because they have one or more of these protected characteristics, it will amount to a form of discrimination. For example, where a person is treated less favourably because of their race, it will amount to racial discrimination.
Below, we will examine each form of discrimination in detail below.
Age discrimination occurs where an employee or a prospective employee is treated unfavourably because they belong to a particular age group (for example, a group of over-fifties) or fall within a range of ages (for example between the ages of 40 and 55). An example of unfavourable treatment includes an employee or prospective employee not being considered for promotion or a job position within the organisation because of their age. Age discrimination can be done either directly or indirectly.
Direct age discrimination would occur where:
1. An employer treats an employee or prospective employee in a less favourable way than they treat another employee or a prospective employee who is of a different age range or age group.
2. The less favourable treatment is because of the employee's or the prospective employee's age.
For direct age discrimination to occur, the employee's or prospective employee's age must be a major reason for the unfavourable reason that they have been subjected to.
However, if the employer can show that the actions they took were justifiable (e.g. for good cause), they can prove that they did not directly discriminate against the employee or prospective employee because of age.
On the other hand, an indirect discrimination would occur where an employer makes a change to a working condition or a provision in an employee's contract that results in an less favourable treatment towards the employee. If, however, an employer can show that the changes it made to a condition are justified, the condition would not be considered indirectly discriminatory. It is also possible for an employer to indirectly discriminate against prospective employee's because of their age. For example, where the employer requires job applicants to have least 10 years' industry experience for a managerial role. Such a criteria would mean younger job applicants of a certain age group would be at a disadvantage. If however, an employer can show that the changes it has made to a condition are justified, then the condition would not be considered indirectly discriminatory.
A disability discrimination will occur when an employee or a prospective employee is treated unfairly or less favourably due to their disability. Understanding what is recognised as disability under UK law is an added advantage for employers. Disability means a physical or mental injury that has significant long-term adverse effect on a person's ability to handle normal daily activities. Disability discrimination can take the form of direct discrimination, indrect discrimination or discrimination as a consequence of disability. As an employer, you should be mindful of so-called "invisible disabilities" that employees may have. These include conditions such as dyslexia, diabetes, epilepsy, depression etc. For example, an employer refusing sick leave to an employee who has depression would be guilty of disability discrimination. Similarly, refusing to grant sick leave to an employee who is disabled will be disability discrimination. To this end, an employer should also make sure that its Sickness Absence Policy accommodates employees disabilities, including those regarded as "invisible disabilities". Similarly, when organising a sickness absense meeting, an employer will be well placed to make adjustments for employees that have a disability. Failure to do this will be disability discrimination.
A direct disability discrimination would occur where:
1. An employer treats an employee or prospective employee in a less favourable way than the employer treats another employee or prospective employee who does not have a disability.
2. The less favourable treatment is because of the employee's or the prospective employee's disability.
If the employee can show that an employee or prospective employee who:
(a) does not have a disability; or
(b) has a different disability
has been treated more favourably than them, the employer could find themselves guilty of direct disability discrimination.
On the other hand, indirect disability discrimination would occur where an employer makes a change to or implements a working condition or provision in an employee's contract that results in a less favourable treatment of the employee who has a disability.
An employer should also be mindful of less favourable treatment of an employee because of something that is a consequence of the employee's disability. For example, if an employee has a visual impairment that causes him/her to not work as quickly as his/her colleagues, and his/her employer dismisses him/her because of his/her low productivity, this will amount to discrimination that is a consequence of the employee's disability. This would especially be the case if the employer is aware that the employee has such a disability.
Racial discrimination will occur where an employee or a prospective employee is treated unfavourably or unfairly because of their race. A person will be racially discriminated against if the unfavourable treatment they experience is due to the colour of their skin, their nationality or their ethnic/national origins. It is worth noting that a person can have multiple races and as such, they can be discriminated against because of one of those racial groups that they belog to. For example, a "black briton" is a person who is both black and who is also a British citizen. While such a person may not be discriminated against based on their citizenship as a briton (nationality), they could be discriminated against because they are black (colour of their skin).
There is also a difference between nationality and national origins. Nationality refers to the citizenship of a person. Hence, treating an employee or prospective employee unfavourably because they are a citizen of a particular country will be race discrimination based on nationality. Whereas, national origin refers to the historical and geographic origin of a person's nation or a nation that no longer exists.
Employers should be aware that race discrimination may occur directly or indirectly.
A direct race discrimination would occur where:
1. An employer treats an employee or prospective employee in a less favourable way than the employer treats or would treat another employee or prospective employee is of a different race.
2. The unfavourable treatment is because of the employee's or the prospective employee's race.
For there to be direct race discrimination, the employee's race has to be a major reason for the unfavourable reason that they have been subjected to. If there are other factors that played a part in the unfavourable treatment, it will be direct race discrimination if the employee's race was an important cause for the discrimination.
It should always be remembered that race for the purposes of race discrimination includes colour of skin, nationality and national origin. Employers should make sure they do not directly discriminate against an employee or prospective employees as they will not be able to claim that the discrimination was a by-product of a justifiable action.
In the case of indirect race discrimination, this will occur where an employer makes a change to working condition or a provision in an employee's contract that results in an unfavourable treatment of the employee. For example, it will be indirect race discrimination if an employer makes a workplace policy mandating only English to be spoken in the work environment. An employer should also be aware that it can indirectly discriminate against a prospective employee. This can happen for example, where the employer makes a policy refusing to interview job applicants from a particular region.
Under UK law, gender reassignment includes when a person who is thinking of undergoing, is undergoing or has undergone a process that is aimed at reassigning the person's sex by changing the physiological attributes of their sex. In plain terms, people under this umbrella term are referred to as transsexual (trans).
For understanding purposes, a trans person is a person whose gender identity is different from the one which they were assigned at birth. Once an employee has proposed undergoing a gender reassignment, they will be classified under the protected characteristic of gender reassignment. An employer should also be aware that an employee will still be covered by the protected characteristic even if they started the gender reassignment process but stopped it along the way. Gender reassignment discrimination can take the form of direct discrimination or indirect discrimination.
A direct gender reassignment discrimination will occur where an employer treats an employee or prospective employee unfairly because of gender reassignment. A direct gender reassignment discrimination will still occur even if the employer is a trans person themselves.
An example of direct gender reassignment discrimination would be when because of a saleswoman informing her employer that she wishes to undergo a gender reassignment procedure to become a man, the employer demotes the saleswoman to a role where she will not be in contact with clients. Even if the employees salary is increased to serve as compensation for the demotion, it will still be treated as unfavourable treatment because of gender reassignment. An example of a direct gender reassignment discrimination towards a prospective employee would be where a job applicant is not called back for a second interview because they are transsexual. Employers should also be aware that they can be guilty of direct gender reassignment discrimination as it relates to a transsexual employee's absence from work because of gender reassignment. For instance, if a transsexual employee is treated less favourably than an employee who is absent from work because of sickness or injury.
Conversely, indirect gender reassignment discrimination would occur where an employer makes a change to working conditions or a provision in an employee's contract that results in an less favourable treatment of a transsexual employee. It will also amount to indirect gender reassignment discrimination if the implemented working condition puts the transsexual employee at a particular disadvantage when compared to other persons. If an employer wishes to make such a change, it should make sure that the change is a proportionate means of achieving a legitimate aim.
For the purposes of discrimination in UK law: (a) Marriage refers to any formal union that is legally recognised as a marriage in the UK; (b) a civil partnership refers to a union between same sex partners or opposite sex partners that is recognised in the UK as a civil partnership.
Discrimination under this protected characteristic DOES NOT cover: (a) single persons in a relationship that is not a marriage or a civil partnership; (b) persons who are divorced or have a dissolved civil partnership; and (c) a person who is engaged to be married.
A marriage or civil partnership direct discrimination will occur where an employer treats an employee or prospective employee is treated less favourably than another employee or prospective employee because of their marriage or civil partnership status. An employer will not be able to justify its actions if it is found guilty of direct marriage or civil partnership discrimination. An example of direct marriage or civil partnership discrimination would be where an employer makes a policy that aimed at favouring married employees, but excludes employees in a same sex civil partnership from benefitting from the policy.
Conversely, an indirect marriage or civil partnership discrimination would occur where an employer implements a working condition or provision in the employee's contract that results in the unfavourable treatment of the employee. This will also apply to conditions that affect prospective employees. For example, it will be indirect marriage or civil partnership discrimination if an employer withdraws a job offer upon finding out that a job applicant is married and the employer believes single employees are more productive.
Pregnancy and maternity discrimination will occur where an employer treats a woman unfavourably: (a) during her pregnancy; (b) because of an illness she experiences because of her pregnancy; (c) because she is on compulsory maternity leave; (d) because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.
In the context of pregnancy or maternity discrimination, unfavourable treatment by an employer would subjecting the employee to detrimental or disadvantageous treatment. Pregnancy or maternity discrimination differs from other forms of discrimination in that the affected employee does not need to have been treated less favourably than another employee. All that matters is that the affected employee has been subjected to unfavourable treatment. This also applies to prospective employees. An example of unfavourable treatment towards a prospective employee would be where an employer withdraws a job offer upon learning that the job applicant is pregnant. Similarly, it will be unfavourable treatment towards an employee if an employer does not inform a employee about vacant promotion opportunities because she is pregnant or she is on maternity leave.
A direct pregnancy or maternity discrimination would occur where:
1. An employer treats an employee or prospective employee unfavourably because she is pregnant.
2. The unfavourable treatment endured is because of the employee's or prospective employee's pregnancy.
On the other hand, an employer would be indirectly discriminating against an employee because of her pregnancy if the employer changes or implements a working condition or provision in the employee's contract that results in unfavourable treatment of the employee. An employer should therefore be mindful of implementing any condition or criteria that could result in the unfavourable treatment of the employee.
As pregnancy or maternity discrimination only affects female employees, it is also possible that an employer can be guilty of sex discrimination along with pregnancy or maternity discrimination based on a single unfavourable treatment it has subjected the employee to. This is something to pay close attention to as an employer.
Under the UK law governing discrimination, a religion refers to any religion and a reference to religion also includes a reference to a lack of religion, while belief refers to any religious or philosophical belief and a reference to belief will also include a reference to a lack of belief. In simple terms, an employee's lack of religion or religious belief will also be classified as a protected characteristic and they should not be discriminated against for not having religious faith. As relates to belief, an employees belief in recognised concepts would also count as being part of the protected characteristic. For example, an employee believing in climate change will count as a belief and if an employer treats them less favourably for having this belief, the employer will be guilty of religion or belief discrimination.
A direct religion or belief discrimination will occur where an employer treats an employee less favourably than another employee because of religion or belief. Under the UK law, prospective employees are also protected from direct religion or belief discrimination. For example, if an employer rejects a Christian job applicant who is the best candidate for the job because the employer does not like Christianity, this will amount to direct religious discrimination.
Conversely, an indirect religion or belief discrimination will occur where the employer makes a change or implements a condition in the employee's contract that results in less favourable treatment of the employee. An example of indirect religion or belief discrimination would be where an employer makes a change to the working schedule that prevents an employee from carrying out their religious practices such as Friday Jummah Salat (prayers) for Muslim employees.
Sex under UK discrimination law refers to gender, that is, man or woman. In other words, sex discrimination by an employer refers to less favourable treatment related to the employee's gender.
A direct sex discrimination will occur where an employer treats an employee in a less favourable manner because of the employee's sex/gender. The less favourable treatment must be because of sex for the discrimination to be considered as direct discrimination. An employer should taker as much steps as it can to ensure that it does not treat an employee less favourably because of the employee's sex/gender.
On the other hand, an indirect sex discrimination will occur where the employer makes a change or implements a condition in the employee's contract that results in less favourable treatment of the employee. This will also cover the implementation of any policy that will result in a less favourable treatment of the employee. This will also cover prospective employees.
Sexual orientation refers to a person's orientation towards persons of the same sex, persons of the opposite sex or persons of either sex.
For the purposes of discrimination under the UK law, sexual orientation discrimination is different from discrimination against a transsexual person. Discrimination against a transsexual person is regarded a gender reassignment discrimination.
A direct sexual orientation discrimination will occur where an employer treats an employee less favourably, in comparison with another employee, because of the affected employee's sexual orientation. This will also apply to prospective employees. For instance, if an employee refuses to employ a job applicant because it finds out that he (the job applicant) has a same-sex partner, this will amount to direct sexual orientation discrimination. Where a direct sexual orientation discrimination has occurred, the employer will not be able to justify the direct discrimination.
On the other hand, an indirect sexual orientation discrimination will occur where the employer makes a change or implements a condition that results in less favourable treatment of the employee. This will also cover the implementation of any policy that will result in a less favourable treatment of a prospective employee. For example, where an employer refuses to hire a job applicant because he/she has a same-sex partner.
Ensuring discrimination does not take place in the workplace should be at the forefront of every employer's mind when running its organisation. The extent of the rules against discrimination are such that employers are not just mandated to guard against discrimination against their own employees, but also prospective employees (i.e. job applicants).
This therefore means that employers should be very diligent in making sure that they scrutinise their practices to make sure they are not discriminatory in any form, as well as making sure that all policies they adopt are inclusive. Additionally, it is imperative for all employers to know and take account of all employees they have working for the them to ensure that none of their practices are discriminatory.