Discrimination – common questions

What is unlawful discrimination?

Unfair or unfavourable treatment of an individual or group based on certain characteristics, known as ‘protected characteristics’.

What are the protected characteristics?

Age: A reference to a person of a particular age group, whether by reference to a particular age or to a range of ages.

Disability: This is a legal definition as opposed to a medical one, whereby a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Gender reassignment: If a person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex, they have the protected characteristic of gender reassignment. A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

Marriage and civil partnership: A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner.

Pregnancy and maternity: A person discriminates against a woman if they treat her unfavourably because of her being pregnant or for taking maternity leave.

Race: Race includes colour, nationality, ethnic or national origins. A racial group is a group of persons defined by reference to race; and a reference to a person’s racial group is a reference to a racial group into which the person falls.

Religion or belief: Religion means any religion and a reference to religion includes a reference to a lack of religion. Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

Sex: a reference to a person who has a particular protected characteristic is a reference to a man or to a woman. A reference to persons who share a protected characteristic is a reference to persons of the same sex.

Sexual orientation: Sexual orientation means a person’s sexual orientation towards persons of the same sex, persons of the opposite sex, or persons of either sex.

What different types of discrimination are there?

Direct discrimination: Where a person treats someone less favourably because of a protected characteristic than they would treat someone without the protected characteristic. An employee claiming direct discrimination should show they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.

Indirect discrimination: concerns a provision, criterion or practice which is applied to the whole workforce and is not intended to treat anyone less favourably, but which in practice has the effect of disadvantaging a group of people with a particular protected characteristic. For example if an employer had a policy that workers were not allowed to wear any headgear whilst at work, this may treat workers of certain religions unfairly or unfavourably if they are required to wear headgear as part of their religion.

Harassment: this is unwanted or unwelcome conduct related to a relevant protected characteristic which has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Harassment doesn’t have to be aimed at the person who it offends, and unwanted conduct may include spoken or written words, threats or abuse, offensive emails or comments on social networking sites, physical behaviour or jokes teasing and pranks and should be considered in the context of the complainant’s perception of the conduct.

Victimisation: occurs where A subjects B to a detriment because either B has done a protected act or A believes that B has done or may do a Protected Act. A Protected Act may be bringing proceedings under the Equality Act 2010, giving evidence or information in connection with proceedings under the Equality Act 2010 (regardless of who brought those proceedings), doing any other thing for the purposes of or in connection with the Equality Act 2010 and alleging that A or another person has contravened the Equality Act 2010.

Who is protected?

With regards to discrimination in the workplace, the following categories of individuals are protected: Employees and applicants, contract workers, the police, partners, LLP members, barristers, advocates, office holders, professional or trade qualifications, vocational training and employment agencies, trade organisations and local authority members. Discrimination legislation provides protection against unfair or unfavourable treatment at all stages of employment, including recruitment.

What compensation might I be awarded?

If you succeed in a discrimination claim, you will probably be awarded damages. Compensation in discrimination claims is referred to as an “injury to feeling” award. The size of this award depends upon the seriousness of the discrimination and the effect it has on the individual concerned.

The Court of Appeal set down guidelines for the amount of compensation to be given for injured feelings in the leading case of Vento (2002) and set out three bands of potential awards. These bands have been subject to inflationary increases in some later cases, the leading case being Da’Bell (2009).

The Lower Band is for less serious cases of discrimination, such as one-off incident or an isolated event. The Vento guidance set out an award of £500 – £5,000 and the Da’Bell guidance increased this to £600 – £6,000.

The Middle Band is for serious cases which do not merit an award in the highest band. The Vento guidance set out an award of £5,000 – £15,000 and the Da’Bell guidance increased this to £6,000 – £18,000.

The Top Band is for the most serious cases, such as where that head been a lengthy campaign of harassment or a physical assault. Awards can exceed the guidelines but only in the most exceptional cases. The Vento guidance set out an award of £15,000 – £25,000 and the Da’Bell guidance increased this to £18,000 – £30,000.

The Court of Appeal has held in Simmons (2012) that the level of general damages in certain claims should be increased by 10% after 1 April 2013 however there is conflicting case law as to whether this should apply in the employment tribunal. Until there is clarification from the Court of Appeal, the point remains open to argument.

If you believe that the reasons for your dismissal were discriminatory then you can also claim loss of earnings.

When can discrimination be lawful?

Discrimination in employment is generally prohibited; however there are a couple of exceptions:

Objective justification: is a defence to indirect discrimination, direct age discrimination and discrimination arising from disability. Employers who act in a seemingly discriminatory manner can avoid liability if they can show that such actions were a proportionate means of achieving a legitimate aim.

Occupational requirements: The Equality Act 2010 sets out a number of occupational requirement exceptions including the general exception, employment for the purposes of an organised religion, employers with a religious ethos, employment services and the armed forces.

Health and Safety: if an employer can justify treatment on health and safety grounds this would not count as discrimination. For example, requiring a Sikh man to remove their Kara (symbolic bracelet) if they were operating machinery which the bracelet could catch on and risk a health and safety issue.

Statutory provisions: Schedule 22 of the Equality Act 2010 sets out exceptions covering statutory authority, statutes concerning the protection of women, educational appointments, crown employment and nationality.

What is the burden of proof?

Each party must try to prove the facts of their case are true on the balance of probabilities. If you are claiming unlawful discrimination against your employer, then you have the burden of proof to begin with. You must prove enough facts from which the tribunal can decide that the discrimination has taken place. Once you have done this, the burden then shifts onto your employer to prove that they (or someone for whose actions or omissions they were responsible) did not discriminate against you, or that they have a defence as discussed above.

What do you need to check before you take action?

We would usually suggest that the first cause of action is to raise a formal grievance internally detailing any act of discrimination, who conducted this, witnesses to the alleged act as this may strengthen your case.

Check the time limit; you have 3 months minus one day from the date of the last act of discrimination to make your claim. Make sure you fall within one of the protected characteristics and that you are protected. Also, think about the following facts: who was involved and what is their relationship to you? Are there any witnesses? And what were the circumstances around the incident? Discrimination claims can be difficult to prove so it is helpful to provide as much evidence that unfair or unfavourable treatment has occurred, in order to maximise your chances of success.

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