As a “worker” you are protected under the Equality Act 2010 (the Act) against discrimination, victimisation and workplace harassment. The status of worker is wider than that of employee, and as such can extend to contract and agency workers or even self-employed individuals if they qualify as a “workers”. If you have uncertainty over your employment status, our discrimination solicitors can assist you to clarify this.
Protected Characteristics
The Act protects you from being discriminated against because of a protected characteristic. The protected characteristics are defined in the Act and the Equality and Human Rights Commission Statutory Code of Practice on employment, as set out below:
Age is defined in the Act by reference to a person’s age group. In relation to age, when the Act refers to people who share a protected characteristic, it means that they are in the same age group. A claim can also apply to someone’s perceived age as well as the age of third party such as an individual’s child or partner.
The act says that a person has a disability if they have a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities. Physical or mental impairment includes sensory impairments such as those affecting sight or hearing. These effects are considered irrespective of any medicines or treatments taken to alleviate the symptoms and apply to progressive conditions and perceived disabilities.
People who are proposing to undergo, are undergoing, or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex have the protected characteristic of gender reassignment. A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
Marriage will cover any formal union of a man and woman which is legally recognised in the UK as a marriage. A civil partnership refers to a registered civil partnership under the Civil Partnership Act 2004, including those registered outside the UK.
It is unlawful for an employer to subject a woman to unfavourable treatment during the ‘protected period’ as defined by the Act. The protected period starts when a woman becomes pregnant and continues until the end of her maternity leave, or until she returns to work if that is earlier
The Act defines ‘race’ as including colour, nationality and ethnic or national origins. A person has the protected characteristic of race if they fall within a particular racial group. A racial group can also be made up of two or more distinct racial groups.
The protected characteristic of religion or belief includes any religion and any religious or philosophical belief. It also includes a lack of any such religion or belief. The meaning of religion and belief in the Act is broad and is consistent with Article 9 of the European Convention on Human Rights (which guarantees freedom of thought, conscience and religion).
Sex is a protected characteristic and refers to a male or female of any age. In relation to a group of people it refers to either men and/or boys, or women and/or girls.
Sexual orientation is a protected characteristic. It means a person’s sexual orientation towards: persons of the same sex (that is, the person is a gay man or a lesbian); persons of the opposite sex (that is, the person is heterosexual); or persons of either sex (that is, the person is bisexual).
Types of discrimination
Below are the types of discrimination defined in the Act and the Equality and Human Rights Commission Statutory Code of Practice on employment.
discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic. In most circumstances direct discrimination requires that the employer’s treatment of the worker is less favourable than the way the employer treats, has treated or would treat another worker to whom the protected characteristic does not apply. This other person is referred to as a ‘comparator’.
Indirect discrimination may occur when an employer applies an apparently neutral provision, criterion or practice (PCP) which puts workers sharing a protected characteristic at a particular disadvantage. A PCP can include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a ‘one-off’ or discretionary decision. If the person applying a provision, criterion or practice can show that it is ‘a proportionate means of achieving a legitimate aim’, then it will not amount to indirect discrimination. This is often known as the ‘objective justification’ test.
The Act says that treatment of a disabled person amounts to discrimination where: an employer treats the disabled person unfavourably; this treatment is because of something arising in consequence of the disabled person’s disability; and the employer cannot show that this treatment is a proportionate means of achieving a legitimate aim, unless the employer does not know, and could not reasonably be expected to know, that the person has the disability.
The duty to make reasonable adjustments is a cornerstone of the Act and requires employers to take positive steps to ensure that disabled people can access and progress in employment. This goes beyond simply avoiding treating disabled workers, job applicants and potential job applicants unfavourably and means taking additional steps to which non-disabled workers and applicants are not entitled.
The Act prohibits three types of harassment. These are: harassment related to a ‘relevant protected characteristic’; sexual harassment; and less favourable treatment of a worker because they submit to, or reject, sexual harassment or harassment related to sex or gender reassignment.
The Act prohibits victimisation. It is victimisation for an employer to subject a worker to a detriment because the worker has done a ‘protected act’ or because the employer believes that the worker has done or may do a protected act in the future. A protected act is any of the following: bringing proceedings under the Act; giving evidence or information in connection with proceedings brought under the Act; doing anything which is related to the provisions of the Act; making an allegation (whether or not express) that another person has done something in breach of the Act; or making or seeking a ‘relevant pay disclosure’ to or from a colleague (including a former colleague).
The Act applies to all stages of employment:
- Advertising job vacancies
- Recruitment
- Employment
- Vocational training
- Dismissal
- After employment eg: discriminatory reference
How an employee can succeed in a discrimination claim:
An employee must establish facts from which the tribunal could conclude that, in the absence of an adequate explanation, their employer has committed an act of discrimination or harassment (there a prima facia case of discrimination).
How an employer can defend a discrimination claim:
If an employee has provided clear evidence of a prima facia case of discrimination, the burden of proof falls to the employer to provide a non-discriminatory explanation of its actions which show it did not breach the provisions of the Act.
How much can be claimed?
Compensation for a successful discrimination claim is not limited by the statutory cap. In the case of a discriminatory dismissal an employee can claim a basic award which is calculated in a similar way to a statutory redundancy payment, based on a formula that takes account of age, length of service and the amount of a week’s pay (subject to a statutory cap). The employee can also claim future wage loss as well as ‘injury to feelings’ compensation for the acts of discrimination. There is case law which provides guidance as to the value of injury to feelings awards. If the employee remains in employment they can make a claim solely for injury to feelings award as compensation for the act(s) of discrimination, or the employer’s failure to take appropriate action (failure to make reasonable adjustments). It is also possible for an employee to seek reinstatement or re-engagement, instead of monetary compensation if they have been dismissed. An employee can also seek declarations and recommendations from the Tribunal.
General time limit
Time limits in the Employment Tribunal are very strict. You have 3 months less one day from the date of the unlawful act in which to bring a claim. Where discriminatory conduct extends over a period it should be treated as being done at the end of that period, however we would always advise early advice is taken to capture the earliest act. There may be dispute over whether a series of acts amount to a course of conduct, rather than a series of individual and distinct acts which cannot be grouped. Where a claim is brought outside the time limits referred to above, an Employment Tribunal has discretion to hear the case if it considers it just and equitable to do so. This is exceptional and you should seek legal advice if you may be outside of the prescribed time limits. All time limits are subject to the rules on the automatic extension of time for ACAS early conciliation.
Our discrimination solicitors are here to help you
Our discrimination solicitors are Jo Cullen (Head of Employment Law) and Marina Kanaris.
