www.workrep.co.uk

---

Discrimination: What is it?

Discrimination can take many forms and can be on numerous grounds.

There are various recognised types of discrimination, and legislation has been enacted as a means of prohibiting this. These include sex, race, religion or belief, sexual orientation, age and disability. These are discussed more fully below.

There are numerous forms in which discrimination may present itself. Discrimination is classified as being direct discrimination, indirect discrimination, harassment and victimisation and are defined below.

Types of Discrimination

(1) Sex

It is unlawful, by virtue of the Sex Discrimination Act 1975, to discriminate against a person on the grounds of their sex. Section 3(1) of the act includes discrimination on the grounds of marriage status. This definition was extended by the Civil Partnership Act 2004 which includes those in a civil partnership. The act prohibits discrimination equally against men or women with regard to their sex.

(2) Race

The Race Relations Act 1976 renders unlawful any discrimination against a person because of their race. Section 3(1) defines race as including "race, ethnic or national origin, colour or nationality".

(3) Religion or Belief

Discrimination in relation to religion or belief is also prohibited under the Employment Equality (Religion or Belief) Regulations 2003. The Regulations protect both adherents to a religion and those who do not, and those who hold a particular religious or philosophical belief and those who do not. The aim of the Regulations is not only to ensure that those with a religion are not discriminated against because of their belief, but also that those who do not hold a belief are not discriminated against as a result.

(4) Sexual Orientation

Discrimination on the grounds of sexual orientation is unlawful by virtue of Employment Equality (Sexual Orientation) Regulations 2003. Sexual orientation is defined in the Act as extending to people with an orientation towards people of the same sex, people of the opposite sex and people of the same sex and opposite sex.

(5) Age

Discrimination on the basis of age is not permitted under the Employment Equality (Age) Regulations 2006. The act covers discrimination against old and young alike. The main potential benefit of this Act is for those approaching the normal retirement age to be able to carry on working if they wish. That a savvy employer can easily get around these regulations means that the Act means very little to the majority of those wishing to benefit from it.

(6) Disability

It is unlawful to discriminate on the basis of disability. The Disability Discrimination Act 1995 defines as a person as disabled if they have "a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities".

Means of Discrimination

(1) Direct Discrimination

This will occur where an employer discriminates against an employee, on prohibited grounds, if he treats them less favourably than he treats or would treat another employee. A good example would be where an employer advertises for a job but stipulates that candidates should be 'young and enthusiastic'. This would clearly constitute age discrimination.

The courts employ a distinction between 'unfavourable treatment' and 'less favourable treatment'. Essentially unfavourable treatment amounts to treating an employee poorly. Where an employer treats all their staff poorly this would not be sufficient to establish discrimination. Less favourable treatment on the other hand is where a different employee would receive beneficial treatment in similar circumstances.

The courts will determine whether there has been 'less favourable treatment' objectively, on the basis of the facts of the situation. A comparison will be made between the treatment received by an actual or hypothetical 'comparator' to compare the facts in two situations and establish whether there has been less favourable treatment. Actual comparators are only mandatory in claims made under the Equal Pay Act 1970 (EqPa).

There must be sufficient evidence to prove that the less favourable treatment was based upon a prohibited ground, such as race or sex. The court will employ a causal approach, the 'but for' test. For example, would a worker have received the same treatment as another 'but for' his race?

(2) Indirect Discrimination

Indirect discrimination can be more difficult to identify. This type of discrimination occurs where an employer appears to treat all employees in the same way, but there is a disparity in the effect of that treatment. A good example would be an employer stating that all employees must work on Saturdays. Outwardly this appears to apply to all staff in the same manner. However an orthodox Jewish person could not work on a Saturday as that is their Sabbath. Therefore this would constitute indirect racial discrimination.

There are various tests applied by the courts for different types of discrimination. These are outlined briefly below.

Sex Discrimination; A person discriminates against a woman if he applies to her a 'provision, criterion or practice which he applies or would apply equally to a man but-

(1) which is such that it would be to the detriment of a considerably larger proportion of women than of men;

(2) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and

(3) which is to her detriment.

Racial Discrimination; A person discriminates against another if he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but-

(1) which puts or would put persons of the same race or ethnic or national origins at a particular disadvantage when compared with other persons;

(2) which puts that other at that disadvantage; and

(3) which he cannot show to be a proportionate means of achieving a legitimate aim.

Race Relations Act 1976 S1 (1) (b)

Religion or Belief Discrimination; A person ('A') discriminates against another person ('B') if A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but:

(a) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons;

(b) which puts B at that disadvantage; and

(c) which A cannot show to be a proportionate means of achieving a legitimate aim.

Employment Equality (Religion or Belief) Regulations 2003 Regulation 3 (1) (b)

Sexual Orientation; A person ('A') discriminates against another person ('B') if A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same sexual orientation as B, but:

(a) which puts or would put persons of the same sexual orientation as B at a particular disadvantage when compared with other persons;

(b) which puts B at that disadvantage; and

(c) which A cannot show to be a proportionate means of achieving a legitimate aim.

Employment Equality (Sexual Orientation) Regulations 2003 Regulation 3 (1)(b)

Age Discrimination; A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but- (i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and (ii) which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim. Employment Equality (Age) Regulations 2006 Regulation 3 (1)(b)

Disability Discrimination; a person discriminates against a disabled person if- (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified. Disability Discrimination Act (Amendment) Regulations 2003 Regulation 3 (1)(a) and (b)

Victimisation

Victimisation can manifest itself in various ways. The Race Relations Act 1976 protects from victimisation anyone who has:

(a) brought proceedings under the Act against any person; or

(b) given information or evidence in connection with such proceedings; or

(c) otherwise done anything under or by reference to the Act in relation to any person; or

(d) alleged that any person has committed an act which (whether or not the allegation so states) would amount to a contravention of the Act, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

The various other discrimination Acts also give definitions however they are materially the same as the above.

The employee is protected from being treated less favourably as the result of asserting a protected act, those outlined above.

If the employee has taken action in the way defined by (a) - (d) and been treated less favourably as a result, is it likely they will have a cause for action under victimisation.

The Tribunal will employ a three step test to determine whether victimisation has occurred:

1. it will consider whether the employee has performed a protected act, such as asserting legal rights (not to be discriminated against on the grounds of a disability for example)
2. it will consider whether the employee has then been treated less favourably
3. an assessment will be made as to wheter the disparity was the result of the protected act. All three steps must be satisfied for victimisation to have occurred.

A person is unlawfully harassed where the harasser, on a prohibited ground, engages in actions with the purpose or effect of

1. (a) violating the person's dignity
2. (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

This definition is a statutory formulation and can be found in the relevant statute to the discrimination, the Sex Discrimination Act 1979 s4A(1) for sexual harassment, for example.

The test for whether the action has the relevant effect is not subjective. If someone feels they have had their dignity violated it is not sufficient to establish harassment. The Tribunal will consider whether that action would reasonably constitute a violation of that person's dignity.

Next Steps

If, based on the above, your circumstances fall within one of the categories; you could well be suffering discrimination. There are various ways in which this can be addressed and these will be discussed further below.

Meet your employer

This may not be feasible in all cases as the implications of discriminatory behaviour are wide ranging. However if the circumstances permit, this could be a valuable means of resolution.

Arranging an informal meeting with your employer, with the aim of discussing and resolving the issues, may negate the need of any further action.

In the alternative you could also potentially send a letter, outlining the issues and the outcomes you are seeking.

Raising a Grievance with your Employer

It is important to raise a grievance with your employer. This will allow the employer to try and enact a remedy prior to any consequential action at a Tribunal.

Raising a grievance with your employer will vary depending on your organisation. It would be helpful to check the company handbook for the relevant procedures. Alternatively the grievance procedures may be located in your employment contract. Failing this it would be useful to contact Human Resources, who should give you the relevant information for raising a grievance.

ACAS, (the advisory, conciliation and arbitration service) have issued a Code of Practice for handling discipline and grievances in the workplace in April 2009. This Code provides guidelines for the handling of disputes, including informing the employer of disputes, deciding on appropriate action and taking a grievance further. The Tribunal are legally obliged to pay particular attention to whether these guidelines have been observed, so it is important to act in line with the Code.