In broad terms, discrimination occurs if an employee with a “protected characteristic” is treated differently or less favourably than another employee who does not have that characteristic.
“Protected characteristics” are defined in the Equality Act 2010 as:-
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
An employee does not require any length of service in order to commence a claim in respect of discrimination. This is a day one right. In fact claims can be commenced by individuals who are unsuccessful in applying for a role in your business if they feel that the reason is related to a protected characteristic.
Unlike unfair dismissal proceedings damages in relation to discrimination claims can be unlimited.
The most common claims we come across in this area relate to sex, race and disability discrimination.
An employer can discriminate against an employee in a number of different ways. This can be directly for example not employing an individual because they are a woman.
It can be indirect discrimination. An example of indirect discrimination may be a job advert with a requirement that only people six foot or above may apply. This may indirectly disadvantage women who as a group are generally smaller than their male counterparts.
Another form or discriminatory behavior is harassment which occurs if an employee is subject to an intimidating and hostile environment. The most common example of this is offensive jokes or banter in the workplace but often this claim arises as a result of how capability meetings are conducted by line managers.
Behaviours out of work for example; parties, away days or Friday night drinks, can also give rise to a claim if the event can be deemed to be in the course of employment. Employers can be liable for acts of employees and this is called vicarious liability. Individuals can also be named in proceedings and so liablity can be personal.
Victimisation arises if an individual is put to a disadvantage after for example raising a grievance about their employer/ line manager.
Employees have three months less one day from the act of discrimination about which they complain to commence a claim. An employee need not leave employment to commence a claim.
Discrimination is a complex area.
We can fully advise as to each type of discrimination claim if you are in the position of having to defend one. Taking timely advice is the key.
We can assist with ACAS Early Conciliation and if that is not successful we can draft a response to a claim which will give you the best possible chance of defending the claim. You will only have 28 days to lodge a defence when you receive a claim so remember to act promptly upon receipt.
We can take the stress out of this for you because its what we do every day. Rest assured that our advice will always be commercial and with your best interests in mind. We also provide in-house discrimination awareness training for our clients
If you require any information about our discrimination related services please contact us on 01133229222