Discrimination law represents a lurking danger for employers. However, with good preparation employers can put themselves in a better position to defend discrimination claims.
Employers are particularly vulnerable to discrimination claims because employees don’t need any period of qualifying service in order to bring a discrimination claim and also it is possible that they have never been an employee at all. For example an unsuccessful job applicant can bring a discrimination claim.
In very broad terms if someone is treated in an inferior way because of what is known as a “protected characteristic” that amounts to discrimination. The list of “protected characteristics” has grown rapidly and now consists of the following:-
• Race discrimination
• Sex discrimination
• Age discrimination
• Disability discrimination
• Sexual orientation discrimination
• Religion or belief discrimination
• Gender reassignment discrimination
• Marriage and civil partnership discrimination
• Pregnancy and maternity discrimination
There are a number of different types of discrimination. Direct discrimination occurs when a person is treated badly specifically because of a “protected characteristic”. For example calling a black employee a racist name would amount to direct discrimination. Discrimination can also be indirect. This arises when an employer puts a provision criteria or practice in place, however informal, which applies to everyone, but which the person with the “protected characteristic” and those with the same characteristic would have more difficulty in complying with. For example a sudden imposition of a requirement to work in the evenings may adversely impact on more women than males because women are more likely to have child caring responsibilities and as a result less likely to be able to work during the evenings.
There are other types of discrimination as well. For example, Associative Discrimination occurs when an individual does not have a “protected characteristic”, but is closely associated with someone who does. This might be someone who is a carer who is treated badly because of looking after someone who has a disability. Perception Discrimination arises when someone does not have the “protected characteristic” but an employer believes that he or she does and discriminates against him or her accordingly. For example, a male heterosexual might be thought of as gay and be the target of homophobic abuse.
Employers are particularly vulnerable because they can be what is known as vicariously liable for their employees’ actions. This means that if an employee abuses another employee based on that employee’s “protected characteristic” that is treated as the act of the employer even though the employer isn’t necessarily aware of what has gone on and hasn’t condoned it.
Employers can seek to give themselves some protection in such situations by being able to demonstrate that they have done all they can to prevent discriminatory behaviour on the part of employees. As a minimum this will involve introducing an equal opportunities policy, properly applying it and training employees in equal opportunities.
The above summary has simply touched the surface of discrimination law. It is a complex area but one with which we are very familiar. Davies and Partners has successfully brought and defended discrimination claims and assisted businesses in bringing in appropriate policies and procedures as well as providing training in order to best protect businesses against discrimination claims. If you would like to discuss protecting your business against discrimination claims please contact our specialist team.