inbrief
Equality at work
Inside Protected characteristics Types of discrimination Disability discrimination Equal pay Occupational requirements and positive action Public sector equality duty Equality policies Equal opportunities monitoring inbrief
Introduction Background shifts may disadvantage Christian employees who hold a genuine belief that Discrimination in the workplace is governed Equality legislation has been around now for 40 they should not work on Sundays. by the Equality Act 2010. This brings years. Things have changed a lot over those years. The early cases on pregnancy > Victimisation – subjecting someone to a together into one place all of the equality discrimination suggested detrimental treatment detriment for making a complaint or laws that had developed over a number of was lawful because there was no male bringing or assisting with a claim. For years, including those based on EU law. It equivalent to a pregnant woman. The first example, not promoting an employee also covers discrimination in other areas such discrimination case to reach the higher courts because he had previously brought a held that a rule allowing women to leave work grievance about race discrimination. as the provision of goods, facilities and five minutes early to avoid a stampede by men services. was lawful and that it was not discrimination > Harassment – unwanted conduct related “for mankind to treat womankind with courtesy to a protected characteristic which violates a This Inbrief gives an overview of the law in an and chivalry.” Although the law has developed person’s dignity or creates an intimidating, employment context. For more detail on since then, it has done so piecemeal through hostile, degrading, humiliating or offensive particular types of discrimination, please see cases and legislation. Much of our environment. For example, making fun of a colleague’s mental health condition. our separate Inbriefs on specific protected discrimination law has also been influenced by EU directives and cases. The Equality Act 2010 characteristics. Direct discrimination and harassment also apply brings all of these laws together into one piece where this is based on a perceived of legislation. characteristic, whether this perception is correct or not. For example, if an employee is harassed Protected characteristics because he is mistakenly perceived to be gay, “Protected characteristic” is the general term this will be unlawful sexual orientation used for the various strands of discrimination. discrimination. Similarly, direct discrimination or The protected characteristics are: age, disability, harassment can be based on the characteristics gender reassignment, marriage and civil of a person with whom the employee partnership, pregnancy and maternity, race, associates, rather than their own characteristics. religion or belief, sex and sexual orientation. For example, it would be unlawful religious discrimination to treat a female employee badly For more detail on how the law applies to because her husband is a Muslim, even if she is specific groups, please see our separate Inbriefs not a Muslim herself. on the various protected characteristics and our Indepth on age discrimination. Who is protected?
Types of discrimination In the employment context, it is unlawful to discriminate against: There are different types of discrimination, all of which apply in the workplace: > Job applicants – in relation to recruitment arrangements and decisions, harassment > Direct discrimination – less favourable and victimisation. treatment because of a protected characteristic. For example, refusing to > Employees – in relation to terms, employ a woman because she is pregnant. promotions, transfers, training, benefits, Apart from direct age discrimination, direct dismissal, harassment and victimisation. discrimination cannot be justified. > Ex-employees – where the discrimination > Indirect discrimination – applying a is closely connected to the employment. provision, criterion or practice which disadvantages an employee/job applicant, “Employment” is defined quite widely for the would put others with the same protected purpose of discrimination law. It covers any characteristic at a particular disadvantage, contract personally to do work, meaning that and which is not a proportionate means of most self-employed workers will also be achieving a legitimate aim (i.e. not justified protected. There are also separate provisions by the employer). For example, an employer which prevent discrimination against agency with a rule that all staff must work weekend workers and partners. inbrief
Disability discrimination There is also special protection for women on more detail in our Inbrief on this topic. maternity leave. As well as the types of discrimination set out There is also a limited power to take positive above, employees with a disability have two An employer can defend an equal pay claim by action, which involves favouring an under- additional areas of protection. showing that any difference in pay (or other represented group. contractual terms) is due to a “material factor” Where an employer reasonably thinks that Discrimination “arising from disability” occurs other than sex. This reason needs to be persons who share a protected characteristic where an employer treats a disabled employee genuine. However, if the reason itself has a (e.g. women, Ethiopians or older people): unfavourably “because of something arising in discriminatory effect, the employer must go consequence of his or her disability” and the further and show that it is objectively justified. > have needs which are different from others employer cannot show that the treatment is For example, if bonuses are paid for working who do not share the characteristic; justified (i.e. a proportionate means of achieving anti-social hours, this may disadvantage women a legitimate aim). For example, if an employee who tend to have child care responsibilities and > suffer a disadvantage connected to the has clinical depression amounting to a disability so are unable to work those hours. In this case, characteristic; and and as a consequence does not turn up for the employer would need to show both that have a disproportionately low participation work on most days, an employer who treats him there is a legitimate aim of paying bonuses in > unfavourably (e.g. by giving him a final written this way, and that this is a proportionate way of rate in an activity, warning) would discriminate unless able to meeting that aim. it can take action to meet those needs or to show that the giving of a final warning was a enable or encourage those persons to overcome proportionate means of achieving a legitimate The law on equal pay can be complex, and our the disadvantage or to participate in the activity. aim. Inbrief on this topic provides further information. However, the action taken by the employer There is also a duty on employers to make must be a proportionate means to achieve reasonable adjustments for disabled employees. Occupational requirements and whatever its aim is. Possible examples include Where a disabled person is placed at a positive action training, targeted assistance with job substantial disadvantage by a provision, criterion applications, work experience or free English As explained above, some types of or practice imposed by the employer or by a language lessons. discrimination can be justified. However, it is physical feature of the employer’s premises, the generally not possible to justify direct The Equality Act also contains positive action employer has a duty to take reasonable steps to discrimination (except for direct age provisions applying to recruitment and avoid that disadvantage. There is also a duty to discrimination). promotion. These allow a ‘tie break’ in a favour provide an auxiliary aid if this will avoid a of disadvantaged groups in circumstances disadvantage to a disabled employee. There is a limited exception to this, which where employers are faced with candidates of Reasonable adjustments can cover all kinds of applies where having a particular protected equal merit. However, the preferred candidate steps, from physical alterations to premises to characteristic is a “genuine occupational must be “as qualified” as the other candidates, changes to working patterns or duties. requirement”. The employer must take into and the employer cannot have a general policy account the nature of the employment and the For more information on disability of treating such candidates more favourably. context in which it is carried out. The employer discrimination, please see our Inbrief on this will only have a defence to a direct topic. Public sector equality duty discrimination claim if it can show that this Public sector bodies have a single equality duty Equal pay requirement is genuine, and that applying this requirement is a proportionate means of extending to all characteristics other than There are separate provision in the Equality Act achieving a legitimate aim. It is likely to be marriage and civil partnership. When exercising about equal pay, which covers inequality in pay difficult for an employer to show a valid functions, the authority is required to have or other contractual terms between men and occupational requirement, and alternatives such regard to the need to eliminate discrimination women. as allocating specific duties to others should and harassment, to advance equality of opportunity and to foster good relations An employee can make a claim for equal pay if always be considered. Possible examples might between those who share protected there is an actual comparator of the opposite be requiring a black actor for the lead role in characteristics and those who do not. sex who is paid more for carrying out work of Othello, or hiring only female employees for the equal value. If there is no actual comparator, role of attendant in a women-only changing These duties apply to persons who are not hypothetical comparators are also permitted – room. public authorities but who exercise public meaning that a woman can say “I would have There are some additional exceptions relating to functions. So academies and social landlords will been paid more if I were a man” without the religion and belief, which apply to organisations be subject to the duty. need to identify a specific man who is paid with a religious ethos and employment for the more, and bring a sex discrimination claim. purposes of organised religion - explained in inbrief
Equality policies Equality and Human Rights Commission Employers need to ensure that they have one or more diversity or equal opportunities policies in The Equality and Human Rights Commission place. They must also ensure that staff are have published statutory codes of practice on aware of these policies and receive appropriate employment and on equal pay, which are taken training. Acas guidance recommends that these into account by the Employment Tribunals when policies should be reinforced by: deciding discrimination cases. There is also associated guidance for employers on a variety > making it clear to staff what behaviour is of equality topics. These documents provide unacceptable, including the fact that useful guidance and examples on different types discrimination is unlawful of discrimination, and can be accessed on the EHRC website www.equalityhumanrights.com. > making sure that staff know what to do if they think discrimination or harassment is taking place
> ensuring that staff are trained in equality issues, including issues relating to race
An employer will normally be liable for acts of discrimination carried out by its employees. The employer will only have a defence if it can show that it has taken all reasonable steps to prevent employees from discriminating against or harassing other employees. A diversity or equal opportunities policy, backed up by appropriate training, is therefore essential if the employer wants to avoid being liable for any discriminatory conduct of its employees.
Equal opportunities monitoring
There is no obligation in the Equality Act (or elsewhere) for employers to collect information from employees about their protected characteristics, and similarly no obligation not to do so. Employers who decide to collect such information should do so on a voluntary basis, explaining why the question is being asked and what the information will be used for. For most purposes, it will be possible for the information to be gathered confidentially and anonymously and this may persuade employees to co- operate. Remember that information about For further information on this subject race, health and sexual orientation will be please contact: “sensitive information” for data protection purposes and should be treated accordingly. Carolyn Soakell Partner T + 44 (0) 20 7074 8225
This publication provides general guidance only: expert advice should be sought in relation to particular circumstances. Please let us know by 5 Chancery Lane – Clifford’s Inn email ([email protected]) if you would prefer London EC4A 1BL not to receive this type of information or wish DX 182 Chancery Lane to alter the contact details we hold for you. T +44 (0)20 7074 8000 | F +44 (0)20 7864 1234 www.lewissilkinemployment.com © 2016 Lewis Silkin LLP