As it’s 10 years this month since the Equality Act came into force, we thought we’d have a look at some of the key areas employers will find helpful to be aware of.
Whilst many employers are aware that the Equality Act protects employees and job applicants from being discriminated against or harassed because of ‘protected characteristics’ do you know:
What the protected characteristics are?
These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race (including ethnic origin, colour, citizenship, nationality, and national origin), religion or belief, sex and sexual orientation.
In particular this year, there have been some interesting decisions regarding philosophical beliefs with employment tribunals being increasingly called on to determine whether an employee’s belief meets the requirements to be protected as a philosophical belief under the Equality Act. At the beginning of the year an employment tribunal found that an employee’s belief in ethical veganism was protected as a philosophical belief and more recently, that a belief in Stoicism was protected.
What direct, indirect discrimination, harassment and victimisation are?
In general terms:
- Direct discrimination – Occurs where an individual is treated less favourably because of a protected characteristic than another person would be treated. For example, not promoting someone because of their religious beliefs.
Direct discrimination covers not just the situation where the individual actually has the particular characteristic that has caused their discriminatory treatment, but also where they are perceived to have a protected characteristic and are treated less favourably because of it or they are treated less favourably because of their association with someone who has a particular protected characteristic.
- Indirect discrimination – It’s possible for employers to discriminate against an individual without intending to. This can occur where an apparently neutral provision, criteria or practice is applied, such as a dress code, but it puts an individual who has a protected characteristic at a disadvantage. However, if an employer can show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim their actions will not amount to indirect discrimination.
- Harassment – This is where there is unwanted behaviour linked to a protected characteristic that violate someone’s dignity or creates an offensive environment for them. A particular area of difficulty for employers can be workplace banter – what one employee sees as a bit of fun can easily cross the line into harassment.
- Victimisation – This is where someone is treated unfairly because they’ve done a ‘protected act’ under the Equality Act such as complaining about discrimination or harassment or giving evidence in someone else’s complaint.
Did you know that employees are protected from victimisation even after their employment has ended? It’s important for example not to penalise an ex-employee from bringing an employment tribunal claim alleging breaches of the Equality Act by refusing to provide a reference because of this.
There are additional protections under the Equality Act for disabled employees?
In addition to the protections outlined above, disabled employees have the right not to be treated unfavourably because of something arising in consequence of their disability unless this can be objectively justified by the employer as being a proportionate means of achieving a legitimate aim. There is also a duty on employers to make reasonable adjustments for disabled employees where they are placed at a substantial disadvantage by the physical features of the premises, a provision criteria or practice, or the absence of an auxiliary aid.
Did you know that employers mustn’t make enquiries about a job applicant’s disability or health before offering them a job or including them in a pool of successful candidates to be offered a job when a position becomes available, unless an exemption applies? Exemptions include, establishing whether an employer has a duty to make a reasonable adjustment in respect of an interview/assessment process.
Why it’s so important for employers to avoid discrimination and harassment occurring in their workplace?
It can be very costly to lose such claims as unlike most unfair dismissal cases, there is no upper limit on the amount of compensation that can be awarded to the employee.
It’s also important to bear in mind that employers can be vicariously liable for the discriminatory and harassing acts of their employees so it’s important to put measures in place, such as appropriate policies and training to reduce the likelihood of such instances occurring. This can help an employer to defend their organisation if claims are brought.
In Leader v Leeds City Council an employee brought a claim of harassment against his supervisor and his employer after being subjected to unwanted comments related to race by his supervisor. The employee’s claims against the employer were dismissed after the judge ruled that the employer had shown it had taken all reasonable steps to prevent the supervisor from making racist comments to fellow employees. Unusually, the case proceeded instead against the individual supervisor who made the remarks.
If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.