Legal Article - Employment Law

Direct and Indirect Discrimination

In this category, applicants and employees are protected against both direct and indirect discrimination.

The former occurs when a person of one sex, colour etc. is treated less favourably for that reason than a person of the opposite sex, or of a different colour etc. would be treated in the same, or not materially different, circumstances.

Direct marital status discrimination occurs, for example, when a married person is treated less favourably on grounds of marital status than an unmarried person of the same sex would be treated.

Indirect discrimination occurs when an unjustifiable requirement or condition, which is applied to both men and women in the case of sex discrimination, or to all racial groups, results in one sex or racial group being disproportionately disadvantaged in comparison with the other sex or another racial group.

The courts have said that the test for whether a requirement or condition is justifiable requires an objective justification based on evidence.

In other words, the employer must show that the requirement or condition corresponds to a real need on the part of the organisation and is both appropriate and necessary.

An objective balance must be made between the discriminatory effort of the condition and the reasonable needs of the organisation that applies the condition.

An example of indirect discrimination relates to part time employee rights. Sex discrimination occurs when part - time employees are excluded from jobs or benefits from jobs or benefits, as a substantial majority of part - time employees are women.

Discrimination against male part - time workers, or against men who wish to work part-time, is usually direct discrimination.
An employer can discriminate in favour of one sex, or one racial group etc.

Being of a particular sex is a Genuine Occupational Qualification for a job where, and only where, the following applies:

• Because of physiology (excluding stamina and physical strength) or authenticity, the essential nature of the job would be changed if performed by the other sex

• In order to preserve decency or privacy, members of one sex might reasonably object to the persons of the other sex because of physical contact or state of dress

• In “living-in jobs, accommodation is provided for only one sex and it is unreasonable to expect the employer to provide alternative accommodation for the other sex

• The job holder provides personal services (e.g. promoting welfare or education) which can be most effectively provided by one sex

• There are laws restricting the employment of one sex

• There are duties abroad, in a country where laws or customs, would render one sex ineffective Marital Status is a Genuine Occupational Qualification for a job where, and only where, the job is one of two held by a married couple.

Race is a Genuine Occupational Qualification for a job where and only where, the following apply:

• In dramatic performances, modelling or for reasons of ambience in a club or restaurant a person of a particular racial group is required for reasons of authenticity

• The job holder provides personal services promoting the welfare of a particular racial group which could be most effectively provided by a member of that racial group

Note that if being of a particular sex, marital status or race is a Genuine Occupational Qualification for any part of a job, it is permissible to discriminate on any of these grounds in the filling of a job as a whole.

Published: 24 Mar 2011

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