Generally, it does not matter whether the conduct is intentional as to whether or not prohibited conduct has occurred. It can also be a one-off act, a series of ongoing acts, or arising from a policy or rule.
Protected characteristics
- Sex – being male or female.
- Sexual Orientation – whether towards others of the same sex, the opposite sex or both sexes.
- Marriage or civil partnership (but not being single).
- Gender reassignment/transsexuality – the person is undergoing, has undergone or is proposing to undergo all or part of a process to reassign sex by changing physiological or other attributes of sex. (Note: the process does not have to be a ‘medical’ one).
- Race – including colour, nationality, and ethnic or national origins.
- Religion or belief – any religion or ‘religious or philosophical belief’ or the lack of one.
- Disability – a physical or mental impairment that has a substantial and long-term (having lasted or being likely to last for 12 months or the rest of life) adverse effect on the ability to carry out normal day-to-day activities.
- Age – being either of a particular age or within a particular range of ages.
- Pregnancy and maternity.
There are generally four types of discrimination, direct discrimination, indirect discrimination, harassment and victimisation.
Direct discrimination
This is when someone is treated less favourably than someone else in a similar situation because of a protected characteristic. This type of discrimination can cover situations when a person does not have the protected characteristic, but they are perceived to have it, or they associate with others who do have it.
If the protected characteristic is age, there is a defence of justification if it can be shown that the conduct in question is a ‘proportionate means of achieving a legitimate aim’.
If the protected characteristic is disability, there is no direct discrimination simply because a disabled people is treated more favourably than someone who does not have a disability.
Indirect discrimination
Generally, this is when an employer applies a policy, practice, procedure or rule which puts those who share a protected characteristic at a particular disadvantage when compared with those who do not share it, and it has or would put a person with that characteristic at that disadvantage.
It is however possible to objectively justify this discrimination if an employer can show that their action was ‘a proportionate means of achieving a legitimate aim’.
Harassment
There are three forms of harassment:
- Unwanted conduct to do with sex, sexual orientation, gender reassignment, race, religion or belief, disability or age, and the conduct has the purpose or effect of violating someone’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment.
- Unwanted conduct of a sexual nature and the conduct has the same effect or purpose.
- A person engages in unwanted conduct to do with sex or gender reassignment, or of a sexual nature that has the same effect or purpose, and then because that conduct is rejected, the person is treated less favourably than would otherwise have been the case.
Victimisation
This is when someone is subjected to a detriment because they have made, or have become involved in, a complaint relating to discrimination.
Disability – further considerations
A person may be able to bring a claim for being treated unfavourably because of something ‘arising in consequence of’ their disability and the treatment cannot be justified. An example of this could be, in certain circumstances, dismissing someone due to sickness absence.
An employer also has a duty to make reasonable adjustments if certain circumstances in the workplace place a disabled person at a substantial disadvantage to a person who is not disabled. What are reasonable steps to take depends on the circumstances of each case, and may include alterations to premises, reallocation of duties, altering hours, permitting absence during working hours, providing or modifying equipment, changing, testing or assessment procedures, or making a reader or interpreter available. The effectiveness, practicability and cost of such steps can be taken into account.
During the recruitment process, subject to specific circumstances, employers should not enquire about the applicant’s health before offering or shortlisting them for a position. If they do, this could potentially lead to a claim for direct discrimination.
An employer will be (vicariously) liable for prohibited conduct by its employees or agents, unless it is able successfully to rely on the defence of having taken reasonably practicable steps to prevent the unlawful act (for example, by issuing policies on, or providing training in, diversity). The ‘guilty’ employees or agents can be personally liable, whether or not the employer has relied on its defence and whether or not any such reliance has been successful.
Claims for discrimination must be made within three months of the act complained of, but a tribunal may admit an ‘out of time’ case, if it considers it ‘just and equitable’ to do so. Early conciliation by ACAS is also required (see: Employment Tribunals section).
The tribunal has three possible remedies:
- to give a declaration: a statement of the rights of the claimant and in what respect the employer or any employee has acted unlawfully
- an uncapped amount for any financial losses (including future loss) and for injury to feelings
- recommendations: to benefit the employee and lessen the effect of the discrimination.
Injured feelings
An employment tribunal can award compensation for ‘injury to feelings’ in discrimination cases. The so-called ‘Vento guidelines’ were first established in 2002 and have since been updated to take account of inflation. There are three bands:
- £25,700 – £42,900 for the most serious cases, such as a lengthy campaign of harassment. An award of more than £42,900 would be exceptional.
- £8,600-£25,700 for serious cases that do not merit the highest band.
- £900-£8,600 for less serious cases, such as an isolated act of discrimination. The guidelines say awards of less than £800 should be avoided.
In determining fair and reasonable compensation, tribunals are advised to have regard for the ‘overall magnitude of the sum total of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage’.
