Discrimination
The Law
The Equality Act 2010 came into force on 1 October 2010. This Act brings together and restates the previous discrimination legislation concerning:-
• sex;
• race;
• disability;
• sexual orientation;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• religion or belief; and
• age
These features are known as the “protected characteristics” and the law seeks to adopt a single approach where appropriate.
It prohibits discrimination, harassment and victimisation on the basis of the protected characteristics. It is therefore unlawful to discriminate against someone based on any of these grounds and the provisions are intended to cover all parts of the employment relationship, including recruitment, terms and conditions, promotions, transfers, dismissals and training.
Types of Discrimination
There are various types of discrimination and other unlawful conduct set out in the Equality Act 2010 that apply to most (and in some cases all) of the protected characteristics. A brief overview of the main types are given below.
Direct Discrimination
This is where discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.
Indirect Discrimination
This is where acts, decisions or policies are made which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic. Where such an action disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be shown that the actions were a proportionate means of achieving a legitimate aim.
Harassment / Victimisation
The law also prohibits an employer harassing an employee or prospective employee on the grounds of a protected characteristic. Similar protection exists for individuals in respect of being victimised because they have enforced or attempted to enforce their rights under the Equality Act.
New Provisions
The new Act makes some changes to the law in relation to each of the protected characteristics but there are some general changes which will affect all of the characteristics.
1. Associated Discrimination and Harassment
The new Act extends this protection to all of the protected characteristics with the exception of marriage and civil partnership.
2. Discrimination and Harassment Because of Perceived Characteristics
The definition of perceived characteristics is sufficiently broad to cover an incorrect perception. For example an employee who is not homosexual could raise a complaint alleging discrimination or harassment in circumstances where the employee is not actually homosexual but this is the perception of the perpetrator of the harassing behaviour.
3. Harassment
The definition of harassment in the Act refers to harassment which is ‘related to’ a particular characteristics rather than the former test of ‘on grounds’ (excluding pregnancy, maternity and marriage and civil partnership). This extends the definition to harassment based on perception or association. For example, harassment based on an employee’s spouse’s religion or belief or harassment on account of a misperception that someone is homosexual when they are not.
4. Victimisation
Previously the law involved the need for a comparator. This has been removed by the new Act, but it is unlikely to have any effect in practice.
5. Remedies Available To The Employment Tribunal
The previous legislation meant that the Employment Tribunal could only make recommendations in relation to the Claimant only. However, this was often not a very effective remedy as many employees will leave the employer as a result of the treatment they have received. The new Act gives the Employment Tribunal the power to make recommendations in relation to the “wider workforce”.
6. Positive Action
This is perhaps the most significant change brought about by the Act. The previous law stated that positive action involved “training and encouraging” underrepresented groups. The new Act takes this further and introduces a general provision that allows employers to take proportionate means to assist the employee to overcome the disadvantage, or meet specific needs of the employee relevant to a protected characteristic.
It is also now possible for employers to apply voluntary positive action in recruitment and promotion processes when faced with two or more candidates of equal merit, to address underrepresentation in the workforce.
Provisions Not Yet In Force
The Equality Act also makes provision for various other areas some of which are yet to come into force. A number of these are being further considered by the Government. The Government has confirmed that it will not be implementing the socio-economic duty for public authorities. Another element of the law (which is still to be brought into force) is allowing claims involving Multiple Discrimination. As the law stands at the moment it is not competent to bring a claim to an Employment Tribunal relating to a combination of more than one ground of discrimination, e.g. that discrimination was on the grounds that the individual was black and a woman. It is unclear when this right will come into force, if at all.
Further Information
Although all of the solicitors in our Employment Team are experienced at advising both employers and employees in relation to discrimination matters, Duncan Murray, is an expert in the field of discrimination and has been involved in some ground breaking discrimination cases. For example, he was instructing solicitor for the Ministry Of Defence in MacDonald v MOD which was appealed to the UK Supreme Court.
Duncan is assisted by Pamela Macaulay, Carrie Mitchell and Jillian Paton who also specialise in discrimination law. As well as advising on bringing and defending discrimination cases before Employment Tribunals we are also able to offer:-
• discrimination audit/health check
• compliance training for managers and supervisors
• training on avoiding harassment claims
• advice on drafting and implementing an adequate equal opportunity policy
Additional useful information can be found on the Equality and Human Rights Commission website – http://www.equalityhumanrights.com/
Contact Us
You can contact the employment law team in Edinburgh, Glasgow or London. For an initial informal discussion contact Innes Clark:
T: 0131 247 1181
E: innes.clark@morton-fraser.com
The contents of this article are for information only and are not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Morton Fraser accepts no responsibility for the content of any third party website to which this article refers.
