If you are an employee who wants to bring a discrimination claim in the Employment Tribunal you need to have in mind the key headline issues to succeed at the hearing or in negotiations with your employer towards settlement of the claim.
D irect and indirect discrimination is unlawful in the employment field. This an outline of what is unlawful discrimination in Employment Law.
(1) Sex Discrimination
Direct Discrimination
If you are a woman and have been treated less favourably than a man in employment this is direct discrimination. Treatment that is different is not enough for it to be unlawful – you will have to show less favourable treatment. The question is whether you would have received the same treatment but for your sex.
Indirect Discrimination
This occurs if your employer applies a requirement or condition to you as a woman which also applies to a man but which is such that the proportion of women who are unable to comply is considerably smaller than the proportion of men and the employer cannot show it to be justifiable irrespective of sex.
Victimisation
If your employer treats you less favourably than others because you threaten to bring proceedings, to give evidence or information, to take any action or make any allegation concerning your employer with reference to the Equality Act 2010 or has done any of those things, then your Employer will be guilty of victimisation.
Responsibility of your employer for discrimination of employees
Your employer is responsible for the discriminatory acts of its employees. If a male employee sexually harasses you at work your employer will be legally liable for it because the law regards unwanted conduct related to your sex as harassment.
(2) Disability Discrimination
The rules of direct discrimination apply to Disability discrimination. Disability means there must be a physical or mental impairment which affects normal day to day activities.
If you are disabled your employer has the following duties to you:
- Not unjustifiably to treat you less favourably for a reason relating to disability in connection with arrangements, job offers and terms and
- To make reasonable adjustments to any “arrangements” or physical features in premises which substantially disadvantage you as a disabled person
- Whether the discrimination can be justified will be judged after taking account of your employer’s duty to make arrangements
(3) Racial Discrimination
The rules on racial discrimination are broadly similar to those applying to sex discrimination. Race is defined as including colour, race, nationality or ethnic or national origin.
If you claim that you were not selected for interview and you allege that the reason was due to discrimination against you on the grounds of your race you can claim race discrimination in the arrangements made for the purpose of determining who should be offered that employment or by refusing or deliberately omitting to offer you that employment.
Once the inference of discrimination is drawn from the facts it then falls upon your employer to show that it did not treat you any differently from other applicants for the position and the selection for interview was purely based upon appropriate experience and qualifications of each applicant for the position advertised.
DISCRIMINATION LAW COMES OF AGE
Employers are generally alive to the dangers of unfairly dismissing employees and of the resulting claims in the Employment Tribunal. Aside from these dangers, Employers often fail to anticipate discrimination claims before it is too late.
Under the Equality Act 2010, your employer discriminates against you if it treats you less favourably than someone in similar circumstances on the grounds of age. A claim can be defended if your employer can establish objective justification because the treatment was a proportionate means of achieving a legitimate aim.
The UK default retirement age
The removal of the Default Retirement Age means that your dismissal because of age taking place on or after 6 April 2011 will constitute direct age discrimination under the Equality Act 2010.
It is vital for your employer to get to grips with this legislation as a successful age discrimination claim carries the risk of an uncapped compensation claim. Although the Default Retirement Age has been removed, individual employers will still be able to operate a compulsory retirement age, known as an Employer Justified Retirement Age, but this will have to be objectively justified.
DISCRIMINATION AND HARASSMENT IN THE WORKPLACE
When harassment amounts to discrimination
In order to claim that harassment is unlawful discrimination, you must show there is a link between the harassment complained of and the prohibited ground of discrimination of sex, race, sexual orientation, religion, age and for a reason which relates to a disabled person’s disability. This is a much narrower than the Race, Equal Treatment and Framework Directive which requires that harassment only needs to be “related” to the prohibited ground of discrimination.
Employees in the workplace can claim sexual harassment if they have had their dignity violated or to have been subjected to a hostility, intimidation or a degrading environment created by a manager based upon the treatment suffered by the individual being picked on.
When harassment is not discrimination
Where the harassment you complain of is not necessarily discrimination, you can as the victim of bullying at work now use the Protection from Harassment Act 1997(“PHA”). It was thought that this legislation would not protect employees because it was designed to combat stalking.
In Employment Tribunal claims for discrimination there is no cap on the level of award that can be made, except for awards of injury to feelings which are capped by fixed monetary bands depending on the level of seriousness of the case. On the other hand, claims under the PHA for damages for anxiety while not limited to actual psychiatric harm, are likely to be modest.
I have an understanding of the challenges faced by employees bringing discrimination claims and I can provide a range of services to assist in pursuing them. If a claim arises I can use my experience and knowledge to increase the chances of a favourable outcome and I can offer a cost effective “one stop shop” service as Direct Public Access Barrister with the right to conduct litigation to include the conduct of the case throughout, including representation and advocacy at the hearing.
