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Employment Law for Employers Q&A: Unlawful Workplace Discrimination

27/04/2021

Discrimination is a complex and evolving area of employment law which can have far reaching consequences for employers, not least because the potential compensation that can be awarded when things go wrong is unlimited.

While it is difficult to summarise such a complex topic, the Q&A set out below is intended to give a general overview of the main principles of unlawful discrimination in the workplace.

Q. On what grounds is discrimination unlawful in the workplace?

A. Workplace discrimination is prohibited in relation to any of the following ‘protected characteristics’:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Q. What forms of discrimination are unlawful in the workplace?

A. While there are some differences depending on the protected characteristic involved, the basic forms of workplace discrimination that are unlawful are as follows:

  • Direct discrimination – where, because of one of the protected characteristics, an employer treats an employee less favourably than it would treat other employees.
  • Indirect discrimination – where acts, decisions or policies are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people who share one of the protected characteristics, and the employer is unable to demonstrate that it is a proportionate means of achieving a legitimate aim.
  • Harassment – unwanted conduct either of a sexual nature or related to one of the protected characteristics, which has the purpose or effect of either:
    • Violating the dignity of an employee, or
    • Creating an intimidating, hostile, degrading, humiliating or offensive environment for an employee.
  • Victimisation – this is designed to protect employees who bring or help others in bringing a complaint or claim of discrimination, and is a form of discrimination that occurs where the employer subjects an employee to a detriment for doing so.
  • Instructing, causing, inducing and helping discrimination – where the employer instructs, causes, induces or helps someone to discriminate against, harass or victimise an employee, or attempts to do so.

Q. Who is protected from discrimination in the workplace?

A. Although this Q&A deals with employees, a range of individuals are protected against discrimination in the workplace, including:

  • Job applicants;
  • Workers;
  • Contractors and agency workers; and
  • Directors.

Q. Are there any circumstances in which workplace discrimination is permitted?

A. While discrimination in the workplace is generally prohibited, there are certain circumstances where an employer may have a defence to acts of direct or indirect forms of discrimination. These include:

  • Indirect discrimination if that discrimination is a proportionate means of achieving a legitimate aim.
  • Occupational requirements.
  • Positive action.
  • Acts permitted by statute.
  • Certain exceptions to age discrimination.
  • A form of disability discrimination known as ‘discrimination arising from a disability’ where such discrimination is a proportionate means of achieving a legitimate aim.

Q. Who is liable for discrimination that occurs during employment?

A. In addition to being liable for its own acts of discrimination, an employer can also find itself liable for the acts its employees committed in the course of their employment, even if the employer had no knowledge of such acts. The employer will however have a potential defence to such liability if it can show that it took all reasonable steps to prevent employees committing such acts.

‘Reasonable steps’ are likely to include:

  • Implementing and reviewing policies relating to equal opportunities, anti- harassment and anti-bullying.
  • Bringing those policies to the attention of employees.
  • Training managers and supervisors in equal opportunities, harassment and bullying issues.
  • Demonstrating that complaints are dealt with effectively and where appropriate, disciplinary action taken.
  • Similarly, an employer can find itself liable for the discriminatory acts of agency workers and contractors.

Q. What is the penalty for an employer committing an act of discrimination?

A. If a discrimination claim is successful, a tribunal may do one or more of the following:

  • Make a declaration.
  • Order that the employer (and any individual who engaged in discriminatory acts) pay compensation.
  • Make a recommendation as to what steps an employer must take to reduce the adverse effect of discrimination.

Almost all successful discrimination claims result in compensation being paid. In determining the amount of compensation, the following general principles apply:

  • Compensation can be awarded for both financial losses (including loss of earnings, pension, and benefits) and non-financial losses (including injury to feelings, personal injury and aggravated damages).
  • Employees are required to take reasonable steps to mitigate their losses.
  • There is no limit on the amount of compensation that can be awarded.
  • Compensation can be awarded against the employer and against any individuals involved, including other employees.

This article should not be relied upon as a substitute for professional legal advice. If you are an employer seeking legal advice on a particular matter or employment circumstance, please contact Deborah West by emailing [email protected] or by completing the form below. 

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