Protection Against Discrimination in Workplace - Week 11 Flashcards
What are the areas of discrimination covered by the act - Protected Characteristics
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
Age
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
Disability
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
What is an impairment?
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
What is long term?
The disability should’ve lasted or be expected to last for at least 12 months or for life
Gender Reassignment
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
Marriage and Civil Partnership
People aren’t to be treated less favourably because they’re in a marriage or civil partnership
Pregnancy and Maternity
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
Race
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
Religion
This includes not having a religion
It includes all religions and any religious r philosophical belief
Belief
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
Sex
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
Sexual Orientation
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
Prohibited Conduct
Types of Discrimination;
1) Direct discrimination (including perceptive and associative discrimination)
2) Indirect discrimination
3) Harassment
4) Victimisation
Direct Discrimination
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
Discrimination by Perception
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
Discrimination by Association
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
Indirect Discrimination
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
Discrimination - Comparators
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
Comparators and Equal Pay
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.
Discrimination and Disability - Reasonable Adjustments
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
Example of above
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
Harassment
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
Victimisation S27
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
