There are times when an employee feels that they have been discriminated against and the law is very protective in this area. However, there is a process to follow before legal action can be taken.
The general common law rule is that an employer is free to offer employment to whomsoever he chooses. However, the employer will breach statutory requirements if he discriminates against a person on the grounds of things such as sex, race etc.
The Equality Act 2006 protects employees, contract workers, job applicants and employees after employment has ended so there is a vast range of individuals that are covered under the Act.
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The Equality Act 2006 sets out certain characteristics that are protected. These are the grounds on which discrimination is based upon. They are:
– Gender reassignment
– Religion or belief
– Sexual orientation
– Pregnancy and maternity.
The Equality Act provides disabled employees with protection from discrimination in the work place. The employer must make reasonable adjustments to accommodate an employee with a disability.
It is unlawful to discriminate against an employee due to a physical or mental disability or fail to make reasonable adjustments to accommodate an employee with a disability. A person is classified as disabled if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities.
If an employee has a disability that is making it difficult to maintain an efficient work load, employers should consider what reasonable adjustments they can make to help the employee. An interview can be arranged with the employee to discuss what can be done to support them. It could be as simple as supplying an ergonomic chair or power-assisted piece of equipment. Reasonable adjustments do include re-deployment to a different type of work if necessary.
It is unlawful for an employer to discriminate against an employee due to race, colour, nationality, ethnic or national origin. The different types of prohibited conduct relating to race discrimination could include refusing to employ someone solely due to their race or a requirement for a job position for all employees to have GCSE Maths and English which individuals educated in countries without GCSE’s would not have.
In limited circumstances, there are some job positions which can require that the applicant is of a particular racial group. This is known as ‘occupational requirement’. For example, an advertising company may require an individual of a particular race to advertise their product.
An employer cannot discriminate against an employee due to their religion or belief (or lack of religion or belief). The Equality Act does not set a specific list defining what religion or belief discrimination is. The law defines it as any religion, religious or philosophical belief.
To be protected under the Equality Act, a philosophical belief must be genuinely held, be a belief rather than an opinion or viewpoint, be a belief as to a weighty and substantial aspect of human life, attain a certain level of cogency, seriousness, cohesion and be worthy of respect in a democratic society and not conflict with the fundamental rights of others.
Employers are not obliged to give employees time off or facilities due to their religion but should attempt to accommodate them whenever possible. This could be resolved by offering flexible working, time off to observe religious holidays, prayer rooms, dietary requirements and dress requirements.
The Equality Act outlaws:
– Direct discrimination
– Indirect discrimination
Direct discrimination is treating someone less favourably due to a protected characteristic. This treatment can only be justified if it is a proportionate means of achieving a legitimate aim which means it must be appropriate and necessary (such as business needs).
Indirect discrimination can occur where there is a policy, practice or procedure which applies to all workers, but particularly disadvantages people with a protected characteristic. For example, a requirement for an employment position may be experience in a particular industry for 5 years meaning that it may disadvantage younger applicants. Indirect discrimination can only be justified if it is a proportionate means of achieving a legitimate aim.
Harassment is unwanted conduct relating to an individual’s protected characteristic. This could be violating an individual’s dignity or creating a hostile or offensive environment for that individual.
Victimisation is unfair treatment of an employee who has made or supported a complaint about discrimination.
Therefore, a protected characteristic must be shown and prohibited conduct must be established. The employer does have some limited defences.
It is common knowledge that employees are treated fairly and considerately. Employers should have policies in place which are designed to prevent discrimination.
If an employee wishes to make a complaint for discrimination, they should initially discuss the matter with their employer to attempt to resolve the matter informally. However, if the matter is not dealt with the employee can bring a claim to the Employment Tribunal within three months of the act complained. If there is a continuing act of discrimination, the three months do not start until the discrimination ceases.
The Employment Tribunal can bring various remedies for the individual. A declaration, order or recommendation can be made. Compensation can be given to the individual which includes factors such as direct loss of monies and injury to feelings.
The Equality Act ensures that men and women within the same employment receive equal pay for equal work. This means that women (or men) must be treated no less favourably than the other sex in the same employment. If an employer breaches this, the sex treated less favourably can bring a direct discrimination claim.
An employer can raise a defence that the difference is pay is due to a material factor which is relevant and significant.
If an employee wishes to raise an equal pay claim it must be presented to the employment tribunal within 6 months of the end of the employment contract.
Under the law, part time works must not be treated in a less favourable way than comparable full time workers, solely because they work part time. This incorporates selection for redundancy.
The law prohibits an employer from refusing to employ someone because they are a member of a trade union or takes part in trade union activities. Furthermore, it is unlawful to refuse to employ someone on the grounds that they are, or are not, a member of a trade union.