TEMPLATE FOR VIDCAST: EQUALITY STRANDS OBLIGATIONS OF THE EMPLOYER

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1 TEMPLATE FOR VIDCAST: EQUALITY STRANDS OBLIGATIONS OF THE EMPLOYER INTRODUCTION I m Rena Magdani, Employment Partner from Freeth Cartwright LLP. The topic I am considering today is equality and discrimination and the obligations of the employer. TOPIC Equality and discrimination is largely covered in the Equality Act This detailed piece of legislation came in to effect in October 2010 and covers, amongst other things, what protected characteristics need to be present for an individual to claim discrimination, who can bring an employment tribunal claim for discrimination and on what grounds an individual can bring such a claim. The vidcast we are delivering today will offer a summary of the topic there are some additional areas specific to the area of disability (for example, the duty to make reasonable adjustments), however, these are outside the scope of this vidcast. There are 9 protected characteristics, as follows: 1. Age 2. Disability 3. Gender Reassignment 4. Marriage and Civil Partnership 5. Pregnancy and Maternity 6. Race 7. Religion or Belief 8. Sex 9. Sexual Orientation There are various types of discrimination and other unlawful conduct set out in the Equality Act 2010 that apply to most (and in some cases all) of the protected characteristics: 1

2 Direct discrimination Direct discrimination occurs where "because of a protected characteristic, A treats B less favourably than A treats or would treat others". An employee claiming direct discrimination should show that they have been treated less favourably than a real or hypothetical comparator whose circumstances (other than the existence of the protected characteristic) are not materially different to theirs. The exception to this is pregnancy or maternity discrimination where, because of European case law, formal comparators are not required. Less favourable treatment because of an employee s association with someone who has a protected characteristic is covered (except in marriage / civil partnership cases) for example, a non-disabled employee may bring a direct discrimination claim where they have been treated less favourably because they have a disabled child. An employee who is wrongly perceived to have a protected characteristic (other than marriage or civil partnership) will be protected against less favourable treatment they receive for that reason for example, an employee may bring a direct discrimination claim where they have been treated less favourably because the employer wrongly believes that they are Muslim. Other than in age discrimination cases, direct discrimination cannot be objectively justified. Indirect discrimination Indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic which the employer cannot show to be a proportionate means of achieving a legitimate aim. An example of possible indirect sex discrimination is an employer requiring an employee to work full time. This requirement could disadvantage women as a group, since women in society as a whole bear a greater part of domestic and childcare responsibilities than men and are more likely to want (or need) to work part time. Unless the employer can objectively justify the need for a full-time worker to do the job, the requirement could be indirectly discriminatory against a woman with childcare responsibilities. In relation to the context of indirect race discrimination, where an employer has a policy not to accept applications for jobs from non-eea nationals who required work permits to work in the UK, this could be indirectly discriminatory on the grounds of nationality. Non-EEA nationals would clearly disadvantaged by the policy, which was not justifiable. 2

3 A further example where there may be religious indirect discrimination is if an employer imposes a uniform requirement stating that employees may not wear anything on their heads. This would indirectly discriminate because of religion or belief in so far as it affects turban-wearing Sikh men. An employer may be able to defend a claim for indirect discrimination if it can show that its actions were a proportionate means of achieving a legitimate aim. This is known as "objective justification". For example, an employer who pays an anti-social bonus to employees who work late shifts may be faced with a claim for indirect sex discrimination on the basis that fewer women would be able to undertake such shifts because of childcare responsibilities. However, the objective justification may be that the shift bonus is in place to reward the working of anti-social hours, where an employer can demonstrate it would be unable to fill unless the bonus was paid. Harassment A harasses B if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either: Violating B's dignity, or Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether conduct shall be regarded as having the required effect, the following must be taken into account: B's perception (i.e. are they hypersensitive). The other circumstances of the case. Whether it is reasonable for the conduct to have that effect. An example of harassment would be where a manager continually makes lewd, sexual remarks to a female employee or if homophobic remarks are made to an individual (it should be noted that harassment may occur even if perpetrators wrongly assume an employee is gay / Muslim etc). Victimisation Victimisation occurs where A subjects B to a detriment because either: B has done a protected act. A believes that B has done, or may do, a protected act. 3

4 Protected acts include bringing proceedings under the Equality Act 2010, giving evidence or information in connection with proceedings (regardless of who brought the proceedings), alleging that A or another person has contravened the Equality Act An example of victimisation may occur if a manager whom an employee has raised a grievance detailing allegations of disability harassment against tries to bully the employee in to withdrawing the grievance. Likewise, victimisation may occur if an employee is refused a promotion because she gave witness evidence in a sex discrimination Employment Tribunal claim brought by a former colleague. 5 Do s Do ensure staff are fully trained regarding discrimination / equality issues. Although employers are often liable for the actions of its employees, there may be a defence for the employer if they can show that all reasonable steps were taken to prevent the employee from carrying out the discriminatory act. Do speak to HR if one of your staff complains about discriminatory treatment from third parties (i.e. students, members of the public). If an employer fails to take steps to prevent the third party harassment, the University may be liable. Do check with HR before you ask an employee to remove any piece of clothing or jewellery which could be deemed to be religious. Do speak to HR is you think a role requires someone who has a particular protected characteristic (e.g. female, a particular religion etc). This may be lawful in specific circumstances. Do ensure that you are aware of and understand the University s Equality and Diversity Policy Statement and raise anything with HR that you are unsure about. 5 Don ts Don t ask a job applicant questions about their sickness record. Asking such a question, before making someone a job offer, is unlawful. The Equality Act 2010 applies to job applicants, as well as employees, workers and some selfemployed contractors. Don t give a former employee a bad reference because they have filed an employment tribunal claim. This could result in a further claim for victimisation the Equality Act 2010 also applies to former employees. 4

5 Don t assume that you will not be held individually liable for discriminatory acts an employee can name an individual employee if they bring a tribunal claim and a tribunal may order compensation to be payable by the individual. Don t forget to check job adverts with HR if you are unsure about anything terms such as young flexible or junior could cause difficulties because they may give the impression that certain individuals are not able to apply for the roles. Don t reject a flexible working request without speaking to HR first. There is a process to be followed and an employee could bring a claim for sex discrimination if her request is due to child care arrangements. EMPLOYMENT TRIBUNAL There are lots of employment tribunal cases on the area of discrimination. One case which shows how wide the remit of religion or belief can stretch is Grainger plc and others v Nicholson which held that the Claimant s philosophical belief in climate change and how he should live his life in response to this was capable of being a "belief" for the purposes of the legislation. 5

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