Protection Against Discrimination in Workplace - Week 11

Question 1

What are the areas of discrimination covered by the act - Protected Characteristics

Answer 1

1) Age

2) Disability

3) Gender Reassignment

4) Marriage and Civil Partnership

5) Pregnancy and Maternity

6) Race

7) Religion and Belief

8) Sex

9) Sexual Orientation

Question 2

Age

Answer 2

Refers to people in a particular age group for example, 18 year olds, 50 year olds or those over 60

Has someone from a different age group to the claimant been treated more favourably for that reason?
Direct age discrimination will occur if someone is refused employment because they’re either too young or too old

An employer may be able to defend the claim or discrimination if they can prove it was appropriate to appoint someone in a particular age group
- Needing a young actor in a play

Question 3

Disability

Answer 3

A person has a disability if;

• They have a physical impairment
• The impairment has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities

Question 4

What is an impairment?

Answer 4

The words ‘physical or mental impairment’ are given their usual meaning

The impairment must be medically recognised and relate, for example, to mobility, manual dexterity, eyesight, hearing, memory or comprehension
Progressive conditions such as multiple sclerosis are also included

Birthmarks, scars and skin diseases might be a disability

The effect of the impairment must be ‘substantial’ meaning a person’s ability to carry out ordinary daily tasks must be considerably inhibited compared to people without the impairment

Question 5

What is long term?

Answer 5

The disability should’ve lasted or be expected to last for at least 12 months or for life

Question 6

Gender Reassignment

Answer 6

This covers both male to female and female to male transsexuals and is continuous from the time they decide they wish to change gender and live as a member of the opposite sex

There’s no requirement to be having or to have had medical treatment

Question 7

Marriage and Civil Partnership

Answer 7

People aren’t to be treated less favourably because they’re in a marriage or civil partnership

Question 8

Pregnancy and Maternity

Answer 8

A woman enjoys a protected status in relation to unfavourable treatment at work during pregnancy and for a limited time afterwards

This means she’s protected while she’s pregnant and on maternity leave

Unfavourable treatment of a woman because of her pregnancy or because of illness resulting from or relating to her being on maternity leave is illegal if it takes place during the ‘protected period’.
Examples include = dismissal, demotion or refusal of training opportunities

The protected period starts when a woman becomes pregnant and continues until the end of her maternity leave or when she returns to work if that happens sooner

Question 9

Race

Answer 9

Race includes;
1) Colour
2) Nationality
3) Ethnic or national origins

In related to protected characteristics of race;
- A reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group
- A reference to persons who share a protected characteristic is a reference to persons of the same racial group

Question 10

Religion

Answer 10

This includes not having a religion

It includes all religions and any religious r philosophical belief

Question 11

Belief

Answer 11

Covers religious and non religious belief.

It doesn’t have to involve faith or worship

Belief in the sanctity of life and that fox hunting should be banned have been held to be protected beliefs

Question 12

Sex

Answer 12

This includes males and females of any age
It’s illegal to discriminate directly or indirectly against persons on the grounds of sex

Treating men and women differently doesn’t amount to unlawful discrimination unless it results in members of one sex being treated less favourably than the other

Question 13

Sexual Orientation

Answer 13

Sexual orientation means a person’s sexual orientation towards;

1) Persons of the same sex
2) Persons of the opposite sex
3) Persons of either sex

Treating a person unfavourably because of sexual orientation is illegal under the Act

Question 14

Prohibited Conduct

Answer 14

Types of Discrimination;

1) Direct discrimination (including perceptive and associative discrimination)
2) Indirect discrimination
3) Harassment
4) Victimisation

Question 15

Direct Discrimination

Answer 15

A person discriminates against another if because of a protected characteristic. A treats B less favourably than A treats or would treat others

Covers, for example, treating someone less favourably on grounds of their gender, compared with someone of a different gender → reserving a job for male candidates

There’s no defence to direct discrimination except on the ground of occupational requirements
It’s essential to restrict employment to people of a certain characteristic

For example, dramatic performance or entertainment, participation as artist or photographic model, provision of food and drink to the public in a particular setting or provision of personal/welfare services

Another example is an employer refusing to employ a person on the ground they’re too young or too old

Direct discrimination includes discrimination by perception and discrimination by association

Question 16

Discrimination by Perception

Answer 16

This occurs where someone is treated less favourably because of an incorrect belief about their attributes, abilities, beliefs relating to a protected characteristic

They’re perceived to have a particular protected characteristic

Doesn’t matter if the person does or not
Failing to consider someone for promotion or career progression due to disability

Question 17

Discrimination by Association

Answer 17

This occurs where someone is treated less favourably because they associate with a person with a protected characteristic

For example, an employee is overlooked for promotion because they care for an elderly relative or someone claiming that they have been discriminated against on the grounds of their child’s disability

Question 18

Indirect Discrimination

Answer 18

If A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B

In other words, this would put B at a disadvantage compared with others who don’t share the protected characteristic

For example, a minimum height restriction as a criterion for a job may be judged as indirectly discriminatory on the grounds of sex as men are on average taller than women so it would put many women at a disadvantage

An employer who indirectly discriminates can raise a defence

The defence of justification applies when the employer can show that the PCP is a proportional response/means to achieving a legitimate aim
For example, prescribing rigorous physical fitness for firefighters might be justifiable

Indirect discrimination applies to all the protected characteristics, apart from pregnancy and maternity

Example:

An employer requires employees to work full time
This requirement could disadvantage women as a group since women in society as a whole undertake a greater part of domestic and childcare responsibilities than men and are more likely to want or need to work part time

Unless the employer could objectively justify the need for a full time worker to do the job, the requirement might well be indirectly discriminatory against a woman with childcare responsibilities

Other examples include requiring everyone to pass a fitness test or requiring everyone to take a lunch break at the same time

Question 19

Discrimination - Comparators

Answer 19

Liability in all cases of direct or indirect discrimination is determined by comparing the defendant’s treatment of the claimant with that of an actual or hypothetical person who doesn’t share their protected characteristics

A comparison exercise must be carried out to decide whether another person without the claimant’s impairment but with the same abilities or skills would’ve been treated the same way

An employer will be liable if they treat a person with a disability in a way that puts them at a disadvantage with an able bodied person doing similar work

Question 20

Comparators and Equal Pay

Answer 20

A woman is entitled to claim equal pay with a male comparator who is doing

Like work = meaning the job is the same or largely similar to a male comparator looking at the job as a whole and considering any particular skill or responsibility that goes with it. A cosmetic difference - giving the man’s job a superior title isn’t acceptable

Work rated as equivalent = meaning although different in nature, it has been rated as similar under a job evaluation scheme. This is only applicable if the employer has a job evaluation scheme in place - not compulsory

Work of equal value = meaning that although the job is a different one, it should be viewed as of similar value with regards to such elements as the level of skill, knowledge, trade or professional qualification, physical and mental efforts, decision making or management responsibility it requires.

Question 21

Discrimination and Disability - Reasonable Adjustments

Answer 21

The duty to make reasonable adjustments;

S6 requires an employer to ensure that a person with a disability isn;t put at a substantial disadvantage compared with able bodied employees.

Duty can be divided into 3 areas;

1) Adjustments to working arrangements → allowing an employee to work flexible hours
2) Making physical alterations to the premises → installing a ramp or lift
3) Provision of aids to facilitate carrying out employment duties

Question 22

Example of above

Answer 22

For example, A is dismissed from her work as her clubfoot impaired her performance (she couldn’t stand for long periods of time). Her dismissal would be discriminatory if her employer fails to make reasonable adjustment

A failure to make reasonable adjustments can amount to discrimination
What is reasonable depends of the circumstances and any changes must be proportional not only to the needs of the employee but also the employer

The size of the nature of the business and its premises must be considered and expense is a factor to be considered although not necessarily decisive

Question 23

Harassment

Answer 23

There’s 3 definitions of harassment

Unwanted conduct related to a protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual

The other 2 are outside the scope of the module

Harassment doesn’t have to be directed at an individual

Note the use of the words ‘purpose or effect’

Can be a single event or a series of events

For example, inappropriate comments, offensive jokes, exclusion from social events in situations relating to work

Harassment doesn’t apply to marriage and civil partnership or pregnancy and maternity

Question 24

Victimisation S27

Answer 24

Protects those who have asserted their rights under the Equality Act or someone supporting them from subsequent unfavourable treatment by their employer

For example, treating someone less favourably because they’ve brought a claim of discrimination or supported someone who has brought a claim