Legal Article - Employment Law

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.

Published: 25 May 2011


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