Legal Article - Employment Law

Discrimination at Work

Discrimination Law governs the right of individuals not to be treated less favourably than others on grounds of;
- Sex including pregnancy and maternity
- Race
- Religion / belief or lack of any religion / belief
- Marital Status, including civil partnership
- Status as a fixed term or part time worker
- Disability
- Gender reassignment
- Sexual orientation
- Trade union membership or non-membership
- Age

It also deals with the duty of public bodies to promote equality.

Discrimination within the workplace is an important and sensitive area which affects many employers at some point. It would be advantageous for all employers to understand the law of discrimination, how to deal with complaints and most importantly, how to prevent cases of discrimination arising amongst employees.


The Equality Act and the Equality of Human Rights Commission

The Equality Act and the Equality of Human Rights Commission

The Equality Act 2010 brings together many equality / discrimination laws. The categories of discrimination, such as sex, race, etc are now termed ‘protected characteristics’.

The EHRC have produced non statutory guidance for employers and a statutory code of practice which provides more detailed information and can be used for interpretation within legal proceedings.

Pressure to Discriminate

Pressure to Discriminate

It is also unlawful for a person who has authority over another person, or whose wishes are normally carried out by that other person, to instruct or attempt to procure another person (e.g. a member of staff) to unlawfully discriminate.

Nor should anyone provide or offer any benefit, or use threats to pressure someone to discriminate unlawfully (e.g. threaten industrial action to persuade an employer to discriminate).

Victimisation in the Workplace

This occurs when a person is treated less favourably than another person because he/she has taken legal action, or given evidence or information, or alleged (expressly or otherwise) that another person (e.g. manager) has committed a discriminatory act.

Victimisation is not unlawful if the allegation was false and not made in good faith.

Harassment in the Workplace

Sexual harassment or racial harassment occurs when “unwanted conduct of a sexual or racial nature occurs, or other conduct based on sex or race affects the dignity of women and men at work” e.g. 

• Unwelcome sexual advances or racial attention
• Subjecting someone to insults or ridicule because of their sex or race
• Suggestions that sexual favours may further someone’s career, or that refusal may damage it
• Lewd, suggestive or over familiar behaviour and display or circulation of sexual or racial material.


Harassment can be persistent unwanted sexual advances or racial attention, which continues after the person receiving it makes clear that they want it to stop. However, a single incident can also constitute harassment if it is sufficiently serious.

To be successful under the sex or race discrimination laws an employee would have to show that the harassment caused them a detriment i.e. a disadvantage of some kind e.g. person is forced to resign or is transferred against their will, or their health is affected.

Harassment is a criminal offence.

Liability of Employer

An employer is liable for any act done by an employee in the “course of the employment” with or without the employer’s knowledge or approval, unless the employer can show that such action was taken as was reasonably practicable to prevent the employee committing the act in question.

Anyone who knowingly aids another to commit unlawful acts are also to be treated as having done that act, unless it can be shown that they acted in reliance on a statement that the act would not be unlawful and that it was reasonable to rely on such a statement.

Positive Action

Employers can take positive action to overcome the present effects of past discrimination.
It allows for training or encouragement e.g. where few or no members of one sex (or race) have been doing particular work in the preceding 12 months.

It does not cover recruitment or promotion i.e. no one can be selected for a job to redress a sex or racial balance in the workplace. Special language classes would be permissible for non- English employees.

Part-time Employees

Part-time Employees

Prior to current legislation most part-time employees were women and the employer was only at risk in treating them differently from full-time employees when committing an act of indirect sex discrimination.

For example, when an unjustifiable requirement or condition, which is applied to both men and women, results in one sex being disproportionately disadvantaged in comparison with the other sex.

Thus if an employer treated a part-time female employee less favourably than a full-time male employee (e.g. gave less holiday) the employer would have had to objectively justify the different treatment.
The employer would have to prove with evidence that it was necessary and appropriate to do so in order for the company to fulfill its objectives.

Now part-time employees have the same statutory rights as full-time employees. e.g. right to claim unfair dismissal after one year’s service or redundancy pay after two years service.
Whilst the above rights still apply, part-time workers of both sexes now have the right not to be treated less favourably than a “comparable full-time worker”.

Definitions

A full-time employee is a person who is paid wholly or in part by reference to the time he/she works and is customarily regarded as such.

A part-time employee is a person who is paid wholly or in part by reference to the time he/she works and is customarily not regarded as a full-time employee.

For part-time employees to exercise their rights they have to compare themselves with a “comparable full-time employee”. The latter is someone who is

• Engaged in the same or broadly similar work
• Has broadly similar qualifications, skills and employment experience, and
• Works at the same establishment, or at a different establishment within the same organisation.

What is Meant by Less Favourable Treatment?

This will occur if a part-timer’s contract contains less favourable terms, or he/she is subjected to any other detriment by any act, or deliberate failure to act, of his/her employer, unless such treatment can be justified on objective grounds.
The pro-rata principle also applies unless it is inappropriate to do so e.g. a company car or health insurance.
Examples of less favourable treatment are

- Lower hourly rate of pay
- Fewer annual holidays
- Longer service requirement before qualifying for sick pay or length of time it is received
- Not participating in profit sharing or share option schemes
- Unfair selection for redundancy
- Longer service period for private health care entitlement
- Different pension qualifications
- Failure to provide the same opportunities for training, promotion and transfers
- Different overtime premiums (these only have to be paid when the same number of hours have been worked).

From Full-time to Part-time Employment

There is no right to be given part-time employment. However, if former full-time employees begin to work part-time for the same employer within 12 months, they can compare their terms and conditions either with a comparable full-time employee, or with the way they used to be treated when full-time.

Protection from dismissal or other detriment
If part-time employees believe they have received less favourable treatment, they can ask their employer for a written statement detailing the reasons for what the worker considers to be unfavourable treatment.

This must be provided within 21 days and must not be evasive. Any dismissal for doing so will be automatically unfair.

It will also be automatic unfair dismissal if it is for any of the following reasons:

- Refused to forgo a right conferred on him/her by the Regulations
- Alleged that the employer had infringed these Regulations
- Brought proceedings against the employer under the Regulations
- Given evidence or information in connection with such proceedings brought by any other worker
- Otherwise done anything under the Regulations in relation to the employer or any other person.

Part-time Pensions

In the past many part-time employees were not allowed to join occupational pension schemes. The House of Lords has decided this was indirect sex discrimination.

Women can now claim membership dating back to 8 April 1976 providing they are still employed with the company, or have presented a claim to a tribunal within six months of leaving such a company. For contributory schemes, joining or securing extra years of service will require the employee paying back contributions.

The employer may still have a defence if he/she can argue that the exclusion of part-time employees from the pension scheme was objectively justified e.g. they worked too few or erratic hours where administrative costs were disproportionate.

Men’s claims can only succeed if a woman has succeeded against his employer, as they can then claim direct sex discrimination.
Practical Considerations

Although not legal requirements, other than statutory rights to request flexible working, the Government recommends employers to consider the following practices:

- Seriously consider requests for job sharing and keep a list of those interested in job sharing arrangements

- Look seriously at requests to change to part-time working and explore with their workers how to do so
- Establish a procedure for discussing with workers whether they wish to change
- Periodically review how individuals and their representatives are provided with information on the availability of part-time and full-time positions

- Consider how to make it easier for workers to vary their hours, including transferring between part-time and full-time work, to the benefit of both workers and the company.


Sex and Race Discrimination

Sex and Race Discrimination

The Equal Opportunities Commission has produced a Code of Practice for the elimination of discrimination on the grounds of sex and marriage and the promotion of equality of opportunity in employment.

The Commission for Racial Equality has similarly produced a Code of Practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment.

The practical guidance provided by the two organisations refers and relates to discrimination in all of its forms including discrimination due to sex, race, nationality, colour, etc.

Promotion, Transfer and Training

Promotion, Transfer and Training

The issue of discrimination is relevant to all aspects of employment and employers need to be mindful of the area particularly when electing members of staff for promotion, transfer or training.

It is essential for employers to meet certain criteria to dispel issues and complaints of discrimination in any of its forms. 

a) Where an appraisal system is in operation, the assessment criteria should be examined to ensure that they are not unlawfully discriminatory and the scheme monitored to assess how it is working in practice;

b) When a group of workers predominantly of one sex is excluded from a staff appraisal scheme, access to promotion, transfer and training and to other benefits criteria should be reviewed, to ensure that there is no unlawful indirect discrimination;

c) Promotion and career development patterns are reviewed to ensure that the traditional qualifications are justifiable requirements for the job to be done. In some circumstances, for example, promotion on the basis of length of service could amount to unlawful indirect discrimination, as it may unjustifiably affect more women than men;

d) When general ability and personal qualities are the main requirements for promotion to a post, care should be taken to consider favourably candidates of both sexes with differing career patterns and general experience;

e) Rules which restrict or preclude transfer between certain jobs should be questioned and changed, if they are found to be unlawfully discriminatory. Employees of one sex may be concentrated in sections from which transfers are traditionally restricted without real justification;

f) Policies and practices regarding selection for training, day release and personal development should be examined for unlawful direct and indirect discrimination. Where there is found to be an imbalance in training as between sexes, the cause should be identified to ensure that it is not discriminatory;

g) Age limits for access to training and promotion should be questioned.

Health and Safety Regulations in the Workplace

Health and Safety Regulations in the Workplace

Equal treatment of men and women may be limited by statutory provisions which require men and women to be treated differently e.g. maternity requirements.

 However the broad duties placed on employees by the Health and Safety at Work etc, Act 1974 makes no distinctions between men and women.

Section 2(1) requires employers to ensure, so far as is reasonably practicable, the health and safety and welfare at work of all employees.

Terms of Employment, Benefits, Facilities and Services

Terms of Employment, Benefits, Facilities and Services

a) All terms and conditions of employment, benefits, facilities and services are reviewed to ensure that there is no unlawful discrimination.

For example, part-time employment, domestic leave, company cars and benefits for dependants should be available to both male and female employees in the same or not materially different circumstances.

b) Where part-time employees do not enjoy pro-rata pay or benefits with full-time employees, the arrangements should be reviewed to ensure that they are justified without regard to sex.

Grievances, Disciplinary Procedures and Victimisation

Grievances, Disciplinary Procedures and Victimisation

a) Particular care is taken to ensure that an employee who has in good faith taken action under the Sex Discrimination Act or the Equal Pay Act does not receive less favourable treatment than other employees, for example by being disciplined or dismissed;

b) Employees should be advised to use the internal procedures, where appropriate, but this is without prejudice to the individual’s right to apply to an industrial tribunal within the statutory time limit, i.e. before the end of the period of three months beginning when the act complained of was done. (There is no time limit if the victimisation is continuing.);

c) Particular care is taken to deal effectively with all complaints of discrimination, victimisation or harassment. It should not be assumed that they are made by those who are over-sensitive.

 

Dismissals, Redundancies and Other Unfavourable Treatment of Employees

Dismissals, Redundancies and Other Unfavourable Treatment of Employees

a) Care is taken that members of one sex are not disciplined or dismissed for performance or behaviour which would be overlooked or condoned in the other sex;

b) Redundancy procedures affecting a group of employees predominantly of one sex should be reviewed, so as to remove any effects, which could be disproportionate and unjustifiable;

c) Conditions of access to voluntary redundancy benefit should be made available on equal terms to male and female employees in the same or not materially different circumstances;

d) Where there is down-grading or short-time working (for example, owing to a change in the nature or volume of an employer’s business) the arrangements should not unlawfully discriminate on the ground of sex;

e) All reasonably practical steps should be taken to ensure that a standard of conduct or behaviour is observed which prevents members of either sex from being intimidated, harassed or otherwise subjected to unfavourable treatment on the ground of their sex.

Encouraging Positive Action

Encouraging Positive Action

a) Training their own employees (male or female) for work which is traditionally the preserve of the other sex, for example, training women for skilled manual or technical work;

b) Positive encouragement to women to apply for management posts – special courses may need to be run;

c) Certain jobs can be carried out on a part-time or flexi-time basis;

d) Personal leave arrangements are adequate and available to both sexes. It should not be assumed that men may not need to undertake domestic responsibilities on occasion, especially at the time of childbirth.

e) Child-care facilities are available locally or whether it would be feasible to establish nursery facilities on the premises or combine with other employers to provide them.

Equal Opportunity Policy

Equal Opportunity Policy

All organisations recommend companies to adopt an Equal Opportunity Policy although it is not a legal requirement.

An equal opportunities policy will ensure the effective use of human resources in the best interests of both the organisation and its employees.

It is a commitment by an employer to the development and use of employment procedures and practices which do not discriminate on grounds of sex, marriage, race, nationality etc and which provide genuine equality of opportunity for all employees.
The detail of the policy may vary according to size of the organisation.

Role of Management

Role of Management

Managers dealing with any complaint involving discrimination must carry out a thorough investigation immediately, and take any consequent action as promptly as possible, maintaining confidentiality at all times.

All employees involved in the investigation are expected to respect the need for confidentiality.

The manager should advise the complainant to keep an accurate record of any discrimination incidents, which occur once the employee has raised the issue.

In the case of an informal investigation a manager should help the complainant to make it clear to the person they believe is discriminating against them and they find such behaviour unacceptable and offensive and that they wish it to stop.

This may be done orally or in writing. If the former, the complainant may wish the manager to be present when they confront the person against whom the complaint has been made.

Often an informal approach may be the most appropriate as the problem may be resolved once the person concerned realises that their behaviour appears to be offensive. If the problem is not resolved, or if the complainant has already tried this approach, it may be necessary to deal with the case more formally.

A manager should discuss the complaint and the person against whom the complaint has been made and take statements from each of them. Both have the right to be accompanied by another employee and they should be made aware of this.

If a manager believes that the parties should not work together whilst the complaint is being investigated, every effort should be made to move them apart.

The presumption should be that the person who should be moved temporarily should be the one against when the complaint has been made and not the complainant, although this will depend on the circumstances of the case.

If it is necessary for a manager to hold any interviews with the complainant’s work colleagues in connection with the investigations, the complainant must be consulted about this first.

If an investigation reveals the complaint to be valid, or has been made maliciously, a manager should take prompt disciplinary action against the discriminator or the complainant respectively.

Where disciplinary action is necessary the disciplinary procedure should be followed. Depending on the severity of the incident dismissal may follow.
Where a lesser penalty such as a warning, is appropriate it will be necessary to ensure that the victim is able to continue working without anxiety or embarrassment.

A manager must discuss the outcome of the investigation and its implications for any consequent action, with both the complainant and the person whom the complaint has been made.

Both have the right to be accompanied by another employee during this discussion.


Published: 25 May 2011

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