Discrimination in the Workplace

Week 2

Historical Background
The common law placed no restrictions on an employers freedom to decide whether to hire a particular individual. Meaning that refusing to employ someone on grounds of race, sex etc was not unlawful. There was also little help from legislation. The Sex Disqualification (Removal) Act 1919, The Race Relations Act 1965 & 1968, The Equal Pay Act 1970 were all very narrow in the level of protection which they provided.

Turning Point
Sex Discrimination Act 1975 Introduced broad protection against direct and indirect discrimination in employment on the grounds of sex and marital status, with a right to complain to a tribunal. Also created the Equal Opportunities Commission to oversee the legislation and enforce it by bringing court proceedings or issuing non-discrimination notices. The Race Relations Act 1976, closely followed this and set-up the Commission for Racial Equality. It was the introduction of European law which had a profound impact upon both legislation and subsequent legislation.

Overview of the Law Today

Protected characteristics set out in s.4 Equality Act 2010 (EqA 2010). Prohibited discriminatory actions are described in s.39 EqA 2010 (recruitment, pay, conditions, promotion opportunities). Four different forms of discrimination direct/indirect/harassment/victimisation. Most cases are a battle of evidence as opposed to technical legal rules.

Equality Act 2010

Main legislation governing discrimination in the workplace. Prior to EqA 2010 there was separate definitions of discrimination e.g. what constituted sex discrimination was different from race. The Act attempted to create a standard definition there are still slight variations.

Protected Characteristics

 There are 9 protected characteristics in the EqA 2010. Age, disability, gender reassignment, marriage and civil partnerships, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Types of Discrimination
There are 4 types of discrimination described in the EqA 2010. 1. Direct Discrimination s.13(1) EqA 2010, A person (A) discriminates against another (B) if, because of a protected characteristic. A treats B less favourably than A treats or would treat others. 2. Indirect Discrimination s.19(1) EqA 2010, A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of Bs 3. Harassment s.26 EqA 2010, sets out a number of situations where this may arise, but the general one is contained in s.26(1) A person (A) harasses another (B) if...A engages in unwanted conduct related to a relevant protected characteristic. 4. Victimisation s.27(1) EqA 2010, A person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act includes a bringing a discrimination claim against the employer.

Defences to Discrimination Claims

Once direct discrimination is established there is one major defence available to the employer occupational requirement. In rare cases an employer can plead statutory authority. Employers may have a defence against a claim of indirect discrimination if they can show that their actions was a proportionate means of achieving a legitimate aim. Further, specific, defences or exemptions arise for some protected characteristics.

Occupational Requirement
Defence appears in Para. 1 of Schedule 9 of EqA 2010. The defence ONLY applies to direct discrimination. Having regard to the nature or context of the work a) it is an occupational requirement; b) the application of the requirement is proportional to achieving a legitimate aim; and c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds to believe that the person meets it).

Direct Discrimination
Leading case James v Eastleigh Borough Council (1990) HL The Council provided free
swimming facilities for old age pensioners. The qualifying age was accordingly 65 for men and 60 for women. The House of Lords held that this was sex discrimination, regardless of motive. The test was objective. "But for" his gender, a man of 61 like Mr James would have received the same free swimming facilities as his wife. Held there was direct discrimination.

Moyhing v Barts & London NHS Trust (2006) Male nurses performing intimate procedures on female patients required a chaperone. No such rule applied to female nurses. Held direct discrimination Therefore to make a finding a direct discrimination it must be shown that the employer has treated the applicant less favourably than the employer treats or would treat others, because of a protected characteristic.

Indirect Discrimination
S.19 EqA 2010 Indirect discrimination is proved if the following four conditions are satisfied:1. The employer applies a provision, criterion or practice which applies or would apply equally to those who do not share the claimants protected characteristic. 2. It puts or would put people with the claimants protected characteristic at a particular disadvantage when compared with those who do not share it. 3. It puts the claimant at that disadvantage. 4. It cannot be shown to be a proportionate means of achieving a legitimate aim. Hardy & Hansons plc v Lax (2005) employee successfully challenged her employers refusal to allow her to work part-time on returning from maternity leave as unlawful indirect discrimination. The employer lost the argument on the principle of proportionality in achieving a legitimate aim.

Harassment
S.26 EqA 2010 A person commits harassment if he engages in unwanted conduct related to a protected characteristic that has the purpose or effect of:1. Violating a workers dignity, or 2. Creating an intimidating, hostile, degrading, humiliating or offensive environment for the worker. Conduct is only to be regarded as harassment if, having regard to all the circumstances, including in particular the perception of women, it is reasonable for the conduct to have that effect.

 Protection from Harassment Act 1997 was already in existence. Its original target was stalking but the HL held it had a much wider application in the decision in Majrowski v Guys and St Thomass NHS Trust (2005). The 1997 Act has significant practical advantages over the EqA 2010 6 year limitation, not 3 months; damages merely for anxiety; no employers defence. Its also conceptually wider because it is not defined in the 1997 Act and it applies to harassment for any reason not just the protected characteristics.

Victimisation
Applies where a person is subjected to a detriment because of proceedings brought or evidence given against the discriminator.

Discrimination before employment

S.39 EqA 2010 unlawful for an employer to discriminate during selection procedure, in the terms offered for employment, or by deliberately omitting to offer the employment. Realism has to be applied not unlawful for an employer to ask a woman a question during interview which would not be asked of a man. The issue is whether the question meant the woman was less favourably treated because of her sex. Section 1 of Schedule 9 to the Act statutory exemption from liability for unlawful discrimination where a protected characteristic is a genuine occupational requirement. Has to be proportionate to the legitimate aim.

Discrimination during employment

S.39(2)(b) EqA 2010 unlawful for an employer to discriminate against a worker during employment for affording/preventing promotion, transfer or training opportunities. Unlawful to subject a worker to any detriment. MoD v Jeremiah (1979) CA detriment means putting at a disadvantage.

Discrimination on, and after, termination of employment

S.39(2)(c) EqA 2010 unlawful to discriminate against a worker by dismissal. Worker could be entitled to compensation and reinstatement. Burden of proof for unfair dismissal on grounds of discrimination is on the employer. No upper limit on the amount of compensation which could be awarded.

Proving Discrimination
Proving discrimination is really problematic Usually little or no direct evidence. Burden of proof is on the applicant to show, on the balance of probabilities, that they have been discriminated against. In practice the courts have adopted an approach where they will look to the employer for an explanation if the applicant is able to show less favourable treatment.

Vicarious Liability
S.109 EqA 2010 makes the employer vicariously liable for discrimination by the complainants fellow employees in the course of their employment, whether done or not done with the employers knowledge or approval.