Discrimination

Discrimination law is now all dealt with under the Equality Act 2010 which has been introduced to make discrimination law simpler and more effective.

Unlawful discrimination is discrimination in relation to one of the ‘protected characteristics’, which are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Discrimination can take the form of either direct or indirect discrimination, victimisation or harassment.

Direct discrimination is where a person (A) treats another person (B) less favourably than they treat, or would treat, others, and they do so because of a protected characteristic. The person claiming discrimination would have to show that other employees would not have been treated in the same way. If the employer can show that they would have treated all employees similarly badly, it would not be direct discrimination. Therefore the person claiming discrimination should have a comparator. This comparator may be a real person or a hypothetical person. Comparators must not be materially different from the person claiming discrimination.

Indirect discrimination is different from direct discrimination in that it does not involve workers being treated differently. It is a type of discrimination that arises when, although the employer treats all the workers the same, some aspect of that uniform treatment affects one group of workers adversely compared to another. An example of this would be an employer requiring workers to work long and/or uncertain hours, which women might find particularly difficult to comply with because a far greater percentage of them than men are primary child carers.

Harassment is not limited to the protected characteristics. There are three types of harassment. Firstly, harassment is where a person (A) engages in unwanted conduct towards another person (B) in relation to a relevant protected characteristic. The conduct must have the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. B is also harassed if A engages in unwanted conduct of a sexual nature and the conduct has the
purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Finally, harassment is also where A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B, and because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

When deciding whether conduct has the effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B, the perception of B must be taken into account along with the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

Victimisation refers to a ‘protected act’. A protected act is either bringing proceedings under the Equality Act 2010, giving evidence or information in connection with proceedings under the Equality Act 2010, doing any other thing for the purposes of or in connection with the Equality Act 2010 or making an allegation (whether or not express) that A or another person has contravened the Equality Act 2010.

A person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act. Victimisation only applies where the person subjected to a detriment is an individual.