Discrimination at work can take many different forms, and they can be complex in nature and you should seek independent legal advice as soon as possible.
The main types of discrimination are as follows:
The concept of direct discrimination is based around a comparator, this is a real or hypothetical employee or applicant, who is an similar position but who is a different gender, race, nationality etc.
Direct discrimination occurs when:
- A treats B less favourably than he treats/or would treat a comparable employee without B’s protected characteristic.
- A does this because of B’s protected characteristic.
If an employer treats all his employees unfavourably this will not amount to discrimination as the treatment affects all the employees. Once a claimant has established an preliminary case of discrimination the respondent must establish a credible (non-discriminatory) reason for the less favourable treatment.
Indirect discrimination addresses the concept of an employer applying an obligation or condition with which a particular protected group (age, disability, gender religion or belief etc) finds in difficult to comply with.
Indirect discrimination occurs when:
- A applies a rule or practice which is discriminatory in relation to a protected characteristic
- A applies or intends to apply the rule or practice to persons who do not share the protected characteristic.
- The application of the rule or practice puts or would put a person with the protected characteristic at a disadvantage when compared to persons who do not have the same characteristic.
- The application of the rule or practice puts or would put the person with a protected characteristic at a disadvantage.
- A cannot show that the application of the practice to be a proportionate means of achieving a legitimate aim.
As with direct discrimination the concept of comparison is important, for an appropriate comparison there must be no material difference however the comparators do not need to be identical.
The practical difference between direct and indirect discrimination is that if an employer can show that the rule or practice is proportionate means of achieving a legitimate aim they will not have unlawfully indirectly discriminated against the employee.
Although many employees may feel that they are or have been ‘harassed’ by their employer due to the ordinary use of the term, there is however a specific definition for harassment under the Equality Act 2010.
Harassment occurs if:
- A engages in unwanted conduct;
- The unwanted conduct is related to a relevant protected characteristic; and
- The conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The unwanted conduct must relate to the protected characteristic. The scope of conduct is broad and also Tribunals can take into account a series of events which could constitute unwanted conduct.
Similar to harassment many employees may feel that they have been victimised by their employer for numerous reasons however the victimisation provision only protects those who have done a protected act from suffering detrimental treatment.
- A subjects B to a detriment
- Because B has done a protected act.
The relevant protected acts are:
- Bringing court or Tribunal proceedings (whether against the employer or third party) under the Equality Act.
- Giving evidence or information in relation to a claim
- Doing any other thing for the purposes of or in connection with the Equality Act 2010 or previous discrimination legislation
- Alleging (whether or not expressly) that the employer (or a third party) has done an act which would amount to a breach of Equality Act 2010 or previous discrimination legislation.
Examples of detriment include being passed over for promotion, being denied a bonus or award, threatened with discipline or dismissal.
Discrimination arising from disability occurs where;
- A treats B unfavourably;
- Because of something
- That something is arising in consequence of B’s disability and
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The above test is an objective test and does not require a comparator. If the employer however can show that it did not know and could not have reasonably have been expected to know about the employees disability then the employer will not be guilty of disability discrimination.
At Optimal Solicitors whatever the circumstances of your discrimination, we can assist with the process of advising on and preventing possible claims for discrimination. Please contact us.