Workplace Discrimination

The Equality Act 2010 is the current legislation relevant to discrimination.  It introduced the following “protected characteristics” which may not be used as the basis to discriminate against any person: age, disability, gender reassignment, marital or civil partnership status, race, religion or belief, sex and sexual orientation, pregnancy and maternity.

The broad categories of discrimination include:

Age Discrimination
Disability Discrimination
Gender Reassignment
Race Discrimination
Religious Discrimination
Sex Discrimination and pregnancy and maternity discrimination
Sexual Orientation

The term “discrimination” is a wide one and can include in relation to each “protected characteristic”, the following categories:

Direct discrimination - when a worker is treated less favourably than another worker is treated, because of a protected characteristic;

Indirect discrimination - where an apparently neutral provision, criterion or practice ("PCP") applied by an employer puts workers who share a particular protected characteristic at a disadvantage compared with those who do not share that protected characteristic.  It is possible for the employer to show that the PCP is justifiable;

Victimisation – where a worker is subjected to a detriment (i.e. any disadvantage) because he/she has made a complaint in good faith about discrimination;

Harassment – where a worker is subjected to unwanted conduct relating to a protected characteristic which has the purpose or effect of violating the worker’s dignity, or creating an intimidating, degrading, humiliating or hostile environment.

To be eligible to bring a discrimination claim, in contrast with unfair dismissal cases, you do not have to have been employed for a minimum amount of time and you do not have to be an employee.  Workers are also able to bring claims for discrimination, meaning that casual workers, agency workers, those on zero hour contracts and some 'self employed' individuals will qualify.

The general approach in discrimination cases is that it is for the employee or worker to demonstrate why he or she believes that the employer's conduct was discriminatory.  The burden of proof then shifts to the employer to provide its explanation.  If the employer has a good explanation and the tribunal accepts this and concludes that its conduct was not discriminatory then the claim for discrimination will fail.  If however, the employer cannot put forward a sensible or reasoned explanation to explain what happened then the tribunal may accept the employee's version of events.

You have a maximum period of three months from the date of the most recent instance of discrimination against you in order to make a claim in the employment tribunal, regardless of any ongoing internal grievance or disciplinary procedures. However, as a preliminary issue you must contact ACAS to go through early conciliation within that same three month time frame.  It is important to note that a claim will not be accepted by the employment tribunal unless the employee/worker has first been through early conciliation and has an early conciliation certificate.  The early conciliation process presses pause on the limitation clock, although the rules relating to time limits can be complex so please contact us if you require further information.

INJURY TO FEELINGS

If you are successful in your claim for discrimination, the employment tribunal may award you compensation for injury to feelings.  In may also be possible, if claimed, to receive compensation for injury to health if you have been made ill because of your employer's conduct. The compensation guidelines are complex and take into account the degree of hurt felt, long periods of discrimination, numerous instances of discrimination and evidence of injury to health and feelings, among other factors.

If you believe that you are being discriminated against, or you simply want more information about your rights, Ashby Cohen can help you. We specialise in employment law cases, and our years of experience as employment lawyers make us especially qualified to assist you with any discrimination issues you may have. Please contact us for an initial free telephone consultation.

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