Out-Law Guide | 25 Jun 2021 | 1:59 pm | 2 min. read
Discrimination law can be complex. Negative press coverage is also highly damaging, and awards for discrimination are potentially unlimited. It is therefore something which businesses want to get right, and the summary above is only an introduction to the principal issues.
The Sex, Race, Disability Discrimination and Equal Pay Acts, Sexual Orientation and Religion/Belief Regulations and Age Discrimination Regulations were all replaced in 2010 by the provisions of the Equality Act. The Part-Time Workers Regulations and Fixed-term Employees Regulations remain in force.
There are standard definitions of direct discrimination, indirect discrimination, harassment, objective justification, victimisation and occupational requirement. (See below for some additional protections which apply in relation to disability.)
For the most part these concepts apply to all of the protected characteristics such as age, sex or race, although some anomalies exist. For example, indirect discrimination does not cover pregnancy and maternity leave; and direct age discrimination is capable of being justified, unlike any other form of direct discrimination.
Direct discrimination based on perception and association is prohibited across all the protected characteristics, except marriage and civil partnership status. This means that a person is able to claim direct discrimination even if they themselves do not have the relevant protected characteristic but they nevertheless suffer less favourable treatment "because of a protected characteristic".
Harassment based on perception and association is also prohibited, although the harassment provisions do not cover the protected characteristics of pregnancy and maternity or marriage and civil partnership.
Recent case law from Europe and the UK has suggested that associative discrimination might also extend to claims of indirect discrimination and victimisation.
Employers are able to recruit or promote someone from an under-represented or disadvantaged group where they have a choice between two or more candidates who are "as qualified as each other". In light of the current focus on diversity – in terms of being an employer of choice, as well as working to narrow a gender or ethnicity pay gap – employers might also wish to use these provisions to increase the number of female candidates or candidates from minority ethnic groups in senior roles.
Disability has additional protections in the form of two additional categories of discrimination – discrimination arising from disability, and a different interpretation of indirect disability discrimination – and a failure to make adjustments.
There is no requirement for a comparator in this type of claim. It is unlawful to treat someone unfavourably "because of something arising in consequence of" that person's disability, for example their sickness absence. The employer is able to justify the treatment where it is a proportionate means of achieving a legitimate aim.
An employer will not be liable if it did not know, and could not reasonably be expected to have known, of the disability.
This type of claim arises where people sharing the same disability as the claimant are put at a particular disadvantage by a provision, criterion or practice applied by the employer.
Disability varies from person to person, so it will often be difficult to establish that a number of people share the same disability. This means that claimants may not be able to establish group disadvantage.
The duty to make reasonable adjustments also applies to disabled employees. Where an employer knows, or ought to know, that the employee has a disability and suffers a disadvantage as a result, the employer is required to make adjustments to premises or working arrangements with the aim of keeping the employee in work, or helping them back to work if they are absent.