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:
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.
Your employee has a maximum period of 3 months (less a day) from the date of the most recent instance of discrimination in order to make a claim in the employment tribunal. This is regardless of any internal grievance or disciplinary procedures that are ongoing.
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.
If you are seeking to put into practice a diversity policy, if you want to learn more about the laws relating to discrimination, or if an allegation of discrimination has been made against you, 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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