The Equality Act 2010 (EA) is the key piece of UK legislation that covers issues involving discrimination at work.
The EA provides protection for every section of UK employment, including recruitment, training, promotion/lack of promotion, dismissal, differences in employee pay, and unfavourable treatment in the workplace.
Personnel defended by this legislation come from a vast area of the UK work force, including employees, workers, trainees, job applicants and ex-employees. The self-employed are also protected.
Discrimination can be generated by a number of sources, such as an employer’s actions or the actions of an employee’s colleagues or agency representatives.
Protection is available to a worker if they suffer unfavourable treatment due to having a “protected characteristic”. The characteristics protected include:
- Race & Nationality;
- Ethnic or National Origins;
- Sexual Orientation;
- Pregnancy & Maternity;
- Marriage and Civil Partnership;
- Disability (A disability is defined as a physical or mental impairment that has severe long-term effects that hinder or prevent an employee’s ability to perform everyday activities);
- Religion & Belief (including philosophical belief and the non-religious views of atheism).
What is discrimination?
The EA recognises several different forms of discrimination
- Direct discrimination;
- Indirect discrimination;
- Harassment and victimisation.
Direct discrimination is usually the most visible discrimination type. It involves a person being treated in a way clearly less favourable than others as a direct result of this person’s protected characteristic. A common case of direct discrimination involves an employer not offering an applicant a job because of their race or age.
Indirect discrimination is more difficult to identify than direct discrimination. This kind of discrimination exists in a situation where an employer implicates a general rule, known as a provision, criterion or practice (PCP) which applies to all employees but places certain individuals at a disadvantage compared to the majority.
A common example of indirect discrimination would be for a business to expect all its employees to work certain hours despite some workers having private duties that do not allow these rules to be comfortably accommodated. This expectation would not be considered direct discrimination as the same rule applies to all employees, however, as it harms the lifestyles of some staff it can be considered an indirect form of discrimination.
Some leeway exists for employers in regards to indirect discrimination. If they can prove that a rule applying to all employees is in place as a ‘proportionate means of achieving a legitimate aim’ for the business, this rule has the potential to be classified as a non-discriminatory act.
Harassment involves an employee being treated in a manner that causes them emotional or physical suffering. It most often comes in the form of discriminating against an employee’s protected characteristic through unsympathetic comments or behaviour that makes them feel isolated from their peers (see Stress, Harassment & Bullying for more information).
It can often be hard to fully determine an act of harassment, as those responsible for it may not realise the harm they are causing.
Victimisation refers to the treatment of employees who assist a colleague with an issue of harassment. As a result of their support the colleague may find themselves isolated from their peers as a form of punishment for speaking out (see Whistleblowing for more details).
Disciplinary and Grievance procedures
In the case of a discrimination claim, both the employer and employee need to consult the legislation set out by the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk) as this information is required for assessing how to legally resolve workplace disputes of all kinds.
A successful employee claim can potentially be reduced by up to 25% should a tribunal rule that the ACAS code was not followed. There is also a 25% penalty for employers who choose not to acknowledge the rules set out by the ACAS Code.
Are there any exceptions to the code?
Some exception to the ACAS Code of Practice on Discipline and Grievance Procedures is possible. Enhanced redundancy payments made in accordance with the statutory redundancy scheme do not need to follow EA rules, neither do the methods used to calculate statutory redundancy pay, despite the latter being reliant upon age-related legal criteria to generate results.
Compulsory retirement discrimination
An employee can be made to face compulsory retirement if a notice explaining retirement terms for workers who reached the previous default retirement age of 65 before 30th April 2011 has been sent to the employee on or before 5th April 2011.
These terms can also be applied should objective justification for an employee’s retirement be possible on the grounds that it constitutes a ‘proportionate means of achieving a legitimate aim’; a notion similar to the rule exempting certain forms of indirect discrimination.
It is no longer possible to force compulsorily retirement on someone simply because they have reached the previous default retirement age of 65. Employees now have the right to decide when they retire once they reach this age. However, ‘occupational retirement’ can be evoked by employers if the nature of a job requires a worker to be of certain age and/or ability in order to perform their role efficiently.
Employee benefit discrimination
Certain benefits are often provided to employees once they have been employed by an employer for a specific length of time, with five years most often being the minimum amount of time a worker can expect to have worked before receiving them. Benefits of this kind can include providing opportunities like pay increases or private medical insurance.
Since younger employees are less likely to qualify for the length of service these benefits demand, being denied them could be argued to be a form of indirect discrimination. However, potential legal action can be avoided by employers as long as they can prove that these benefits are used to either motivate employees, meet legitimate business needs or reward employees for loyalty and experience.
Even though its structure is heavily reliant on the notion of age groups, The National Minimum Wage is excluded from the employee benefit legislation described above.
Making discrimination claims
Most discrimination claims need to be filed within three months less one day from the date that the discrimination occurred. If this discrimination is part of an ongoing process the time period will run from the most recent date that the discriminatory behaviour happened. The case will be dealt with by an Employment Tribunal.
No minimum length of service is required when making a claim on the grounds of age discrimination, and no limit exists for the amount of compensation that can be awarded. Furthermore, by law, any employee making a claim of age discrimination has the right to request business information from their employer as long as it relates to company policies and past events that are relevant to the discrimination case. This information is entitled to be turned into a report in preparation for the upcoming tribunal.
The findings of this report must be made available to the employer within 28 days of any legal proceedings in order for their own legal representatives to fairly understand what grounds they are facing legal action on and plan how to respond to the claims.
Employer response to discrimination claims
To prove they are not at fault for the discriminatory behaviour, an employer must show they are being treated unfairly and that their actions were for the greater good of the business. Should they fail to do this the employee is likely to be awarded compensation by the tribunal.