Recruitmentby Kate Russell
Short guide to discrimination
Employees, workers (for example, casuals and temps) and self-employed contractors all have a statutory right not to suffer unlawful discrimination. The right exists irrespective of the intentions of the perpetrator of the discrimination and lack of intention is no defence.
There is no service qualification for discrimination. In fact, if you include some term in your job advertisement that can be interpreted as discriminatory, you may be taken to employment tribunal by someone you’ve never even seen (the law on discrimination covers job applicants).
There is no upper compensation limit for discrimination.
From 1st October 2010, The Equality Act 2010 (EqA) replaced almost all the previous anti-discrimination legislation. The aim of the Act was to strengthen and (as far as possible) to harmonise the earlier legislation. In bringing together the various strands of earlier protection, the Act refers to protected characteristics, identifying the grounds on which discrimination will be deemed to be unlawful. They are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation.
The general rule is that it is unlawful to discriminate against a person on grounds of his age. There are a number of exceptions to this. It is still lawful to discriminate on the grounds of age in relation to certain types of service related pay and benefits, the national minimum wage; to comply with other legislation (for example, it will remain lawful to prohibit workers under the age of 18 from working in a bar when the bar is open and selling alcohol), retirement and with regard to certain matters connected with occupational pensions.
The EqA says that reference to a person who has the protected characteristic of age is a reference to a person of a particular age group. A reference to persons who share the characteristic is a reference to persons of the same age group. An age group is defined by reference to age.
Recruitment and selection
- Consider the implications of where you are advertising. For example, if you only advertise on the internet it might be argued that this indirectly discriminates against older people.
- Unless a minimum or maximum age is required by law, age, age-related criteria or age ranges should not be used in advertisements other than to encourage applications from age groups which do not usually apply. Where this is the case, it should be clearly stated.
- If you use a monitoring process in recruitment (not legally required but good practice and potentially very useful) state that age criteria will not be taken into account in employment decisions but used only for monitoring purposes. This information can be asked for in a ‘tear-off’ section of the application form and should be kept separate from the application process.
- Interviewers and those concerned with selection must not select subjectively on the basis of physical characteristics or unfounded assumptions, and must ensure their decisions are based on objective criteria, relevant to the job and merit.
- It is still acceptable to ask for dates of employment, though you should steer away from requesting the range of dates during which candidates attended school.
- You can still ask for graduates, but make sure that you also give people without a degree but with relevant experience the opportunity to apply. Place your adverts in a way that demonstrates that you have trawled the market thoroughly. Avoid asking for a certain length of experience and focus on skills and competence instead. Some job adverts are more conceptual than facts-based and refer to wanting people who are ‘dynamic’, ‘energetic’, ‘mature’, and so on to join the team. Alternatively they may talk about a ‘young company’. These words (rightly or wrongly) tend to be associated with certain age groups and may be discriminatory. Avoid such words and talk more specifically about the skills sets required, for example, the candidate must demonstrate a successful track record in sales. Rejecting a candidate as ‘over-qualified’ without a valid justification could amount to indirect discrimination against an older worker. While you may have legitimate concerns that an older worker with extensive experience may lack motivation for the job, you will have to determine this on a case-by-case basis at interview.
- Making a stipulation that candidates have to work late or must be willing to socialise may be indirectly discriminatory (on grounds of age and sex), because this is more likely to impact adversely on those with child care commitments.
- Don’t ask questions which reflect a bias against age at the interview, for example, ‘How would you feel about working with such a young group of people?’
This case is taken from the Northern Ireland employment tribunal and highlights the problems that employers can encounter if they are careless with their wording in a recruitment campaign.
McGregor and Sons Ltd advertised for a timber sales representative. They asked for someone with ‘youthful enthusiasm’. Mr McCoy, who was 58, was asked whether he still had the necessary ‘drive and enthusiasm’ to be successful, both when he enquired about the post and at two subsequent interviews. Two younger applicants were appointed, neither of who were asked about their drive and enthusiasm. The tribunal found that Mr McCoy had been directly discriminated against on grounds of age. In the employer’s mind, there was a clear link between his age and the motivation he would bring to his work.
- If you make passing a medical part of the terms of the job offer, ensure that this condition is applied to everyone, not just one group of people, likely to be older or disabled workers.
- An individual’s age should not be used to make judgements about his abilities or fitness. Where such a judgement is required, an occupational health or medical practitioner should be consulted.
- Pay and terms of employment should not be based on age, but should reflect the value of individual contributions and standards of job performance.
- The exemption linked to the National Minimum Wage (NMW) and National Living Wage (NLW) allows employers using exactly the same age bands, in other words 16 and 17, 18 to 21, 22 to 24, and 25 and over, to pay at or above the NMW/NLW rates, provided those in the lower age group(s) are paid less than the adult minimum wage.
- You can give benefits based on service if you can show that your use of length of service fulfils a business need (for example, by encouraging the loyalty, motivation or rewarding the experience of the workers). You would award the same benefit to anyone who came into that category.
- There are special provisions for calculating a worker’s length of service for this purpose. On each occasion on which you decide to use the criterion of length of service in relation to an award, you must choose between two ways of calculating length of service. They are:
- the length of time the worker has been employed by you doing work which you reasonably consider to be at or above a certain level, assessed by reference to the demands made on the worker, or
- the length of time the worker has been working for you in total.
- Benefits which accrue based on or below five years’ service are exempt. You may have to do some research to show evidence that you do in fact increase loyalty, motivation and so on by giving these benefits.
In a case decided in the favour of the employer, a tribunal found that a company did not discriminate on age grounds when it provided employees with a fund with which to purchase certain benefits in a flex scheme. Under this scheme, older workers had to pay more out of their fund if they wanted to purchase private medical insurance.
The facts were as follows:
In February 2007, GHL Insurance Services UK Ltd introduced a new flexible benefits package for staff. All non-management employees were offered a ‘flex fund’, calculated as a percentage of their basic salary, with which to purchase individual benefits from a package of options that included private medical insurance (PMI), additional pension contributions, life assurance, critical illness cover, childcare vouchers, dental insurance, travel insurance, gym membership and payroll giving.
Before making any changes, the company had considered the views of its employees and taken advice from an external management company experienced in flexible benefits schemes. A staff survey carried out before the scheme was introduced showed that PMI was the most attractive option. This finding was borne out by evidence of take-up since introducing the scheme which showed that PMI was the most popular benefit choice.
Premiums payable under the PMI scheme were calculated by reference to age and gender tables and an individual’s claims history. The premiums increased as an employee grew older, although they still represented a significant saving on the normal market rate.
Mrs Swann was aged 51. She chose to use her flex fund to purchase PMI and was told that the premium payable was £631.56, based on her age and gender.
Mrs Swann complained of age discrimination on the basis that the premiums for the PMI element of the flex package were age-related and therefore more costly for her than for a younger employee.
In deciding whether Mrs Swann had been treated less favourably, the tribunal considered the company’s decision to provide staff with an amount of money to purchase items within the flexible benefits package. Given that the calculation of the flex fund was age-neutral, it held that Mrs Swann had not been treated any less favourably than younger employees.
The tribunal accepted that the main aim in providing the package was to enhance the recruitment and retention of staff, that this was a legitimate aim and that the package would achieve that aim. With regard to the increase in premiums the tribunal accepted that the premiums, within the scheme were arrived at by reference to actuarial assessments of the risk of an employee making a claim and that all PMI providers in the market calculated premiums based on age-banded tables. They noted that, after the first year, the premium would be adjusted to take into account the actual claim history of an individual employee and that the same discounts were available to all employees, regardless of age.
In view of the above, the tribunal declared itself satisfied that the company would have been able to justify any age discrimination in the scheme. Accordingly, Mrs Swann’s claim of age discrimination failed.
This is only a tribunal decision and therefore not binding on other tribunals, but it does provide an interesting insight into how tribunals might approach similar challenges.
In this case the tribunal panel were split and the majority decision won the day.
Occupational pension schemes are included in the legislation. Personal pensions not provided by the employer (except the employer’s own contribution) are not covered by the regulations.
Employers will be able to provide different pension schemes to employees of different ages, or with different lengths of service and use minimum and maximum ages for admission to pension schemes and for the payment of pensions.
While the legislation makes it unlawful for the trustees and managers of occupational pension schemes to discriminate against members or prospective members on grounds of age, there are a number of exemptions. These include:
- Setting a minimum or maximum age for admission to the scheme
- Setting a minimum level of pensionable pay for admission to a scheme, provided that the level is not above the lower earnings limit
- Setting a minimum age for payment for benefits, provided that, in the case of benefits paid under a defined benefits arrangement before any early retirement pivot age, such benefits are subject to actuarial reduction and the member is not credited with added years
- Only providing benefits to members who have completed more than a minimum period of service, provided that the minimum is not more than two years
- In the case of money-purchase schemes, the use of different rates of employer or member contributions according to members’ ages, where this is done with the aim of equalising or making more equal the amount of benefit to which members of different ages in a comparable set of circumstances are entitled.
Retention and redundancy
- When releasing employees, the organisation’s future needs for knowledge, skills and competencies should be taken into account. Alternatives to redundancy should be considered, such as shorter hours, part-time working or other contractual arrangements, secondments and perhaps employment breaks
- When selecting for redundancy you should not automatically choose older workers
- Where an employer has to make a selection from a pool of employees, it’s good practice to put together a range of criteria for selection. These criteria must be objective, measureable and relevant to the remaining role(s). As well as skills and competencies, they tend to include things like disciplinary record, attendance, skills, appraisal ratings and so on. Avoid length of service as a criterion as it will be indirectly discriminatory.
Mr Court worked for Dennis Publishing. Following an internal reorganisation, he was dismissed on grounds of redundancy. At 55 he was at least 20 years older than the rest of the team from which he had been selected for redundancy. The external candidate brought in to head the new team was also substantially younger. The owner of the business had written a book commenting that older ‘talent’ was ‘very, very expensive’ and that senior employees should not be left ‘in any job too long’.
Mr Court complained successfully of age discrimination. The tribunal agreed that the owner’s philosophy was reflected in the company’s culture, even though the owner had not taken an active part in the redundancy selection process.
The default retirement age was abolished on 1st October 2011.
For more information on retirement, see the Dismissal topic.
A person is disabled if he has a physical or mental impairment and it has a substantial and long term effect on his ability to carry out day-to-day activities.
Discrimination occurs in two ways:
- If for a reason arising in consequence of a person’s disability, an employer treats him less favourably than it treats or would treat other people, and cannot show that it is a proportionate means of achieving a legitimate aim.
- It also occurs when an employer fails to comply with a duty to make a reasonable adjustment in relation to the disabled person. A reasonable adjustment is any step or steps that you can reasonably take to ensure that existing workplace arrangements don’t put the disabled person at a disadvantage in comparison with a non-disabled person. What’s reasonable will depend on the circumstances.
If you have a discussion with a candidate or employee about making changes, ensure you take notes of the discussion, including the things that have been discussed but rejected.
Examples of adjustments:
- Alteration of premises
- Allocation of some duties to someone else
- Transfer to another vacant job
- Alteration of working hours
- Changing the place of work
- Supplying additional training
- Time off for treatment
- Acquiring or changing equipment.
For more information see the Disability Discrimination topic.
A person has the protected characteristic of gender reassignment if he is proposing to undergo, is undergoing or has undergone a process for the purpose of reassigning his gender by changing physiological or other attributes of sex.
The EqA changes the previous law and the person with the characteristic no longer has to be undergoing medical treatment to be protected. It is also clear that a person who has started the process of gender reassignment, but withdrawn before completion will be protected.
Marriage and civil partnership
A person will have the protected characteristic of marriage or civil partnership if he is married or is a civil partner. People who are not married or in a civil partnership do not have the protected characteristic.
Pregnancy and maternity
A woman will have the protected characteristic if an employer discriminates against her because of her pregnancy, during the protected period of her pregnancy or maternity leave.
A reference to a person who has the protected characteristic of race is a reference to a person of a particular racial group. By extension, a reference to persons who share that characteristic is a reference to persons belonging to the same racial group. The protected characteristic includes colour, nationality and ethnic or national origins. A racial group can be made up of two or more distinct racial groups, for example, ‘black Americans’.
The current definition of race in the Equality Act 2010 refers only to colour, nationality, and ethnic or national origins.
It does not formally deal with caste. Caste is a form of class system traditionally associated with the Hindu religion and culture. It is fixed at birth and individuals stay in their initial ranking for life, regardless of their aspirations or actual achievements. Each caste is traditionally associated with particular occupations, and marriage within caste is expected. The Government has acknowledged that almost half a million people in the UK whose background is Dalit – the lowest caste status – face discrimination.
However, in 2018 following consultation the Government concluded that specific legal protection against caste-based discrimination is not required.
Religion and belief
It is unlawful for an employer to discriminate on grounds of religion, religious belief or philosophical belief. The EqA states that ‘religion’ means any religion and reference to religion also includes a reference to a lack of religion.
Belief means any religious or philosophical belief, including a lack of belief.
Religion must have a clear structure and belief system. Examples of protected religions are given in the Act’s Explanatory Notes. They include the Baha’i faith, Buddhism. Christianity, Hinduism, Islam, Jainism, Judaism, Rastafarianism, Sikhism and Zoroastrianism. Denominations and sects within a religion, such as Baptists or Methodists within Christianity are also included.
To amount to philosophical belief, a belief must:
- Be genuinely held
- Not simply be an opinion or viewpoint based on information currently available
- Concern a weighty and substantial aspect of human life and behaviour
- Attain a certain level of cogency, seriousness, cohesion and importance
- Be worthy of respect in a democratic society
- Be compatible with human dignity and not conflict with the fundamental rights of others
Mr Nicholson worked as Head of Sustainability at Grainger plc until he was dismissed in July 2008 on the grounds of redundancy. Mr Nicholson complained that he had actually been dismissed because of his belief in man-made climate change.
The question arose as to whether Mr Nicholson’s belief constituted a philosophical belief for the purposes of the Regulations. Mr Nicholson stated the following in his witness statement:
‘I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change. It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and fears’.
The tribunal accepted Mr Nicholson’s argument that his belief was a philosophical belief for the purposes of the Regulations. This view was upheld on appeal.
The court made clear that it is not necessary for the belief to be overarching in the sense that it impacts on every area of an individual’s life. On this basis, specific beliefs such as pacifism and vegetarianism may be capable of protection under the Regulations. In addition, the EAT suggested that, while support of a political party may not fulfil the relevant criteria, a belief in a political philosophy such as socialism or capitalism may well qualify for protection.
On considering the above criteria the EAT found that the Tribunal had been entitled to conclude that Mr Nicholson’s beliefs were capable of qualifying for protection under the Regulations. However, it would still be necessary to establish that he also genuinely held that belief in order to determine whether he was so protected. The EAT indicated that it would be necessary to hear further evidence and have cross-examination on this issue to make such a finding.
In February 2013 the European Court of Human Rights (the ECHR) gave judgement in the long running case of Eweida and others v The UK.
Ms Eweida worked for British Airways. BA had a rule that where employees wore the uniform they could not wear any jewellery and this include religious apparel, unless they had express permission. Ms Eweida, a committed Christian, wore her cross over her uniform in defiance of the rule. She was suspended without pay for refusing to wear her cross under her uniform and brought a complaint of indirect discrimination on the grounds of her religious belief. She was unsuccessful in the UK courts, but eventually succeeded at the ECHR and the UK government is ordered to pay her compensation on the basis that a fair balance was not struck between her right to freely manifest her religion and those of others (in other words, BA).
Ms Eweida and three others brought claims against the UK Government under the ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (the Convention). While the Convention provides the right to freedom of religion as a fundamental unrestricted human right, the way in which an individual manifests that right may be restricted where it impacts others and other rights. Each of the applicants claimed that domestic law failed to adequately protect their right to manifest their religious belief.
Only Ms Eweida’s claim succeeded in the ECHR. The second applicant, a nurse called Ms Chaplin, also complained that her employer had refused her request to wear a cross on a necklace, which she said was a manifestation of her religious belief. The employer’s rejection in this case was for health and safety reasons.
Ms Ladele, a registrar, had refused to perform same-sex civil partnerships because of her religious beliefs. The employer of the fourth applicant, Mr McFarlane, a sex and relationship counsellor for Relate, doubted that he would provide sexual counselling to same-sex couples, again because of his religious belief that homosexuality was forbidden.
The Court considered how wide or narrow a margin the employers could have in balancing competing rights. On the one hand the right of the employee to manifest their religious belief, and on the other the right of the employer to have, in Ms Eweida’s case, a particular uniform policy and protect the company brand or, in the case of the last two applicants, the right to ensure equality of opportunity for all. The Court was less tolerant of BA trying to support a corporate image than for the other employers who evoked health and safety and the rights of others.
Although the Court found that the UK’s domestic legislation did not interfere with the Convention right to manifest a religious belief, it did find in Ms Eweida’s case that a fair balance was not struck. BA had made exceptions to its uniform policy where employee requests related to fundamental manifestations of their religious beliefs, such as turbans and hijabs, and there was no evidence that these had a negative impact on the corporate image.
The approach taken by the ECHR may have an impact on hours of work. For example, in Mba v London Borough of Merton , Ms Mba claimed that Sunday working was against her core belief and not working on Sundays was a manifestation of her Christian belief. Her claim failed and one of the factors the Employment Tribunal considered was that not working on a Sunday was not a ‘core component of the Christian faith’. In the dissenting judgement of the EHCR in Eweida, it was noted that Christianity is not prescriptive and allows for many different ways of manifesting a commitment to the religion. The burden of proving indirect discrimination is more difficult as a result, at least prior to the Eweida decision. It is likely in these types of cases where employees are seeking not to work specific hours because of their religious belief that a narrower margin of appreciation will be given to employers who are balancing their business needs against those of the individual in these circumstances, in other words: less weight than before will be given to a corporate need than to the employee’s religious belief. In 2017 the case was eventually heard by the Court of Appeal which upheld the reasoning of the original tribunal.
Sexual orientation is defined as being a sexual orientation towards persons of the same sex (this covers gay men and lesbians), the opposite sex (this covers straight men and women) or both sexes (this covers bisexual men and women). It does not extend to sexual practices and preferences.
The equal pay legislation is designed to counteract inequalities in pay based upon sex discrimination. As a result, an equality clause is implied in any contract of employment.
Equal pay is not restricted to remuneration alone, but includes most terms of a contract of employment. Terms affording special treatment because of pregnancy or childbirth, or reflecting statutory restrictions on the employment of women are not covered.
The law requires an employer to pay the same in the circumstances listed below.
- If she is employed on work rated as equivalent with that of a man, for example in terms of effort, skills and decision making.
- Where the work is of equal value (that person must show reasonable grounds for claiming work of equal value).
- If a woman is employed on like work with a man, in other words work that is broadly similar as regards duties and hours.
A woman is employed on like work with a man if her work and his are of the same or a broadly similar nature, and any differences between the things they do are not of practical importance in relation to their terms and conditions of employment. It is for the employer to show the practical importance of any such differences as do exist.
Applicants can claim six years’ back pay. However, if an employer concealed information from an employee or the employee is a minor or of unsound mind, the claim can date back as much as 20 years and the six-month period after employment during which a claim must be brought can be extended.
Employees have the right to question an employer in an equal pay claim by means of a questionnaire. This procedure is intended to increase transparency in pay and reward systems, enabling employees and workers who believe they may be receiving unequal pay to establish the key facts before deciding whether or not to pursue a case to tribunal. Before this, employers only had to disclose such information after proceedings had started.
Under these rules, employees may request the following information about the following:
- Other employees’ pay, benefits and job functions
- A breakdown of earnings in particular jobs or roles
- Pay schemes and job grading schemes
- How the employer fixes salary levels and annual increases
- Whether any form of pay audit exists to ensure equality and fairness across pay structures.
If an employer fails to answer the questions or answers them in an evasive way, the tribunal may draw the inference that the employer is in breach of the equal pay legislation.
The EqA limits the use of pay secrecy clauses by making them unenforceable in circumstances where the employee is making a relevant pay disclosure. A relevant pay disclosure is one that is made for the purpose of establishing whether there is a connection between pay and any protected characteristic (for example, sex, race, age, and so on).
The Act also includes provision to compel private sector employers with 250 or more employees to publish gender pay gap information. This is to encourage employers to be more transparent and to address the recognised pay gap between men and women.
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000
The aim of the regulations is to ensure that part-time workers are treated no less favourably in their working conditions than comparable full-timers, unless the less favourable treatment is justified on objective business grounds.
This means they should:
- Receive the same rates of pay (including overtime pay, once they have worked more than the normal full-time hours)
- Not be treated less favourably for contractual sick pay or maternity pay purposes, or discriminated against over access to pension schemes or pension scheme benefits
- Not be excluded from training simply because they work part-time
- Receive holiday entitlement pro rata to that of comparable full-timers
- Have career break schemes, contractual maternity leave and parental leave made available to them in the same way as for full-time employees
- Be treated no less favourably in the criteria for selection for redundancy.
P worked part-time for H Ltd. In January 2001, H Ltd told P that if she wished to remain in employment she would have to extend her working hours to full-time as it had decided to reduce the number of accounting assistants to three full-time employees. P had three other colleagues performing the same job. They all worked full-time and none them had been employed by the company for more than a few months. P offered to increase her hours to 32.5 hours per week (only five hours less than the full-time workers) but was unable to agree to work full time due to personal reasons. She was subsequently made redundant and complained to the tribunal that she had been treated less favourably because of her part-time status.
The tribunal found that the company had unfairly dismissed P and that she had been treated less favourably than a comparable full-time employee on the basis of her part-time status. She was awarded £50,550 as a compensatory award.
Forms of discrimination
Direct discrimination is where you treat a person less favourably for some unlawful reason. It is fairly uncommon now, but an example might be an advertisement saying ‘Man wanted to work in warehouse’.
This is much more common than direct discrimination and occurs where a condition or requirement that cannot be justified is applied to all applicants, and a proportion of the group of applicants cannot comply. The definition has been updated and widened recently and now refers to a provision, criterion or practice that applies to everyone equally, but would put certain persons of a group at a particular disadvantage, does put a specific person from that group at a disadvantage and cannot be shown to be a proportionate way of achieving the company’s legitimate aim.
An example of this would be an advertisement that said, ‘Person wanted to work in warehouse. Must be 5’10” or more’, because this excludes most of the female population.
Harassment is unwanted language or behaviour which has the purpose or effect either of violating an individual’s dignity or creating an environment that is intimidating, hostile, humiliating or offensive. It is part of the discrimination legislation.
Examples of what may constitute unlawful harassment:
- Spreading malicious rumours, or insulting someone on the grounds of race, sex, sexual orientation and religion or belief
- Unwelcome sexual advances — touching, standing too close, display of offensive materials
- Nicknames based on protected characteristics, such as calling a Welsh person ‘Taffy’, for example
- Excluding an employee from workgroup social activities because he is older than the rest of the group.
Note that gossiping is also capable of constituting unlawful discrimination.
Ms Nixon was employed by Ross Coates Solicitors in Ipswich in a business development role. She was in a relationship with one of the solicitors.
During the Christmas party, Ms Nixon was seen kissing another employee. At the end of the evening they were seen leaving together and were said to have shared an hotel room.
After Christmas it became known that Ms Nixon was pregnant. When she found out about it the HR manager made a suggestion about the paternity of the baby and, according to Ms Nixon, gossiped and spread rumours about her pregnancy.
Ms Nixon said that she was not prepared to work at Ipswich while the HR manager was still there. She subsequently raised a formal grievance. Mr Coates told her that she had to return to work immediately at Ipswich. She was not prepared to do this. Ms Nixon was not paid for the whole of February and on 15 March she resigned, complaining of sex and pregnancy discrimination, harassment and constructive dismissal.
The EAT found that the gossip was clearly connected with pregnancy, so it did constitute harassment on grounds of gender. It said that the failure to allow Ms Nixon to transfer to a different office was sex and pregnancy discrimination.
The court further agreed that Ms Nixon was constructively dismissed and said that the failure by Mr Coates to deal with Ms Nixon’s grievance and his insistence that she return to the Ipswich office where the atmosphere was unfavourable to her breached the implied term of trust and confidence.
Note that bullying is not of itself a statutory offence, but may lead to claims, for example, constructive unfair dismissal. Bullying relates to inappropriate behaviour, for example, ostracising a colleague. It’s unpleasant bullying behaviour, but if it’s not for reasons connected with a protected characteristic, then it’s not harassment.
Third party harassment
Originally, the EqA extended the prohibition on harassment by third parties, for example, by a customer, contractor or member of the public. The employer could be liable when harassment has occurred on at least two previous occasions and the employer is aware that it has taken place and has not taken such steps to prevent it as would have been reasonable. The acts of harassment could be by different people. However, the Government concluded that this protection was ‘unworkable’ and repealed it in October 2013.
This arises when a person has made an earlier complaint of unlawful discrimination and suffers less favourable treatment as a result. Prospective employees, employees and former employees have a right not to suffer unlawful discrimination. Therefore where an employer is found to have treated a person less favourably because of an earlier complaint of unlawful discrimination, the employer may be required to pay punitive damages, that is, damages intended to punish.
Until the Coote v Granada case, it was thought that the employer’s duty not to discriminate ceased with the cessation of employment. When it was tested, the court made it clear that there the protection continues even where acts constituting victimisation take place after the end of employment.
Ms Coote was employed by Granada Hospitality. She had made a claim for Sex Discrimination on the grounds that her employer’s action in dismissing her had been motivated by her pregnancy. That claim was settled and compromised.
Subsequently Granada refused to provide a reference, although they normally gave references for former employees. No reference can mean no job and Ms Coote brought a claim for victimisation. It eventually came before the European Court of Justice.
The ECJ found that the Directive required member states to introduce measures to protect workers from this type of victimisation and that could include victimisation which take place after employment has ended. Mrs Coote was awarded over £200,000 compensation.
The Azmi case reminds us that employees can behave very tiresomely sometimes, but employers have an unwavering duty to behave reasonably and lawfully, even in the face of challenging employee behaviour.
Mrs Azmi is a devout Muslim. She was employed as a bi-lingual support worker at a school. Her job entailed supporting the learning and welfare of pupils and assisting in the educational activity of children from ethnic minority backgrounds. After her appointment she said that her religion required her to wear a full face veil. The headmaster and a colleague both observed Mrs Azmi in the classroom and concluded that when she was wearing the veil, children did not engage with her as well as when she was unveiled. The school said that she could not wear the veil when working directly with children in a classroom, but could wear it at other times.
Mrs Azmi raised a grievance. She went sick for several months and during this time the school asked her to return her laptop. This would not usually have happened. She was also treated differently in relation to her sick leave. On her return to work, Mrs Azmi made it clear that she was unwilling to obey the instruction to remove her veil and she was suspended. She complained to an employment tribunal that she had suffered unlawful discrimination on grounds of her religion or belief.
She was unsuccessful with her claims of direct and indirect discrimination. The way the school treated Mrs Azmi should be compared with the way it would have treated someone who, for a reason other than religion or belief, wears a face covering. Such a person would also have been suspended.
On the indirect discrimination point, the school had applied a practice that put people of Mrs Azmi’s religion or belief at a disadvantage. However, there was no discrimination, because on the facts of this case the requirement was justified as a proportionate means of achieving a legitimate aim.
She did however succeed in her claim for victimisation because she had submitted a grievance and the school had not followed the statutory grievance procedure. She was not invited to a meeting to discuss the issue with her employer and this failure to follow the procedure was capable of constituting victimisation. In addition, the school had asked her to return her laptop and meted out less favourable treatment in relation to her sick leave.
Mrs Azmi was awarded only £1,000 damages for victimisation. Victimisation damages are usually very high because they’re intended to punish the employer. In this case, although the court found that the employer had victimised her, the compensation awarded was extremely low, suggesting her arguments found little favour with the judge.
Associative discrimination is direct discrimination against someone because he associates with another person who possesses a protected characteristic.
Sharon Coleman was a legal secretary with Attridge Law. She lodged a claim after alleging that her manager called her ‘lazy’ when she requested time off to care for her disabled son. She accepted voluntary redundancy, but later brought a claim for constructive dismissal and disability discrimination on the grounds that she had been less favourably treated because of her association with her disabled son.
Agreeing with her, the ECJ ruled that able-bodied people can be covered by the disability legislation.
The right not be discriminated against on grounds of association has been enshrined in the EqA. It covers age, disability, gender reassignment and sex as well as race, religion and belief and sexual orientation.
While the Act does not provide ‘protection for carers’, associative discrimination claims are most likely to arise in relation to flexible working requests to care for disabled or elderly relatives.
Perceptive discrimination is discrimination which occurs because of a person’s perceived characteristics. An example could be an employer who rejects an application from a white man whom he wrongly thinks is black because he has an African-sounding name.
The relevant protected characteristics are:
- gender reassignment
- religion or belief
- gender and
- sexual orientation.
Burden of proof
Once a complainant establishes that an act of discrimination or harassment has occurred on grounds of race or ethnic or national origin, the burden shifts to the alleged discriminator who must then prove that he did not commit the act of unlawful discrimination or harassment. If he is unable to do this, or if the tribunal finds the explanation unsatisfactory the tribunal will decide in the complainant’s favour.