Discrimination Law

Discrimination

Discrimination in employment is unlawful in certain circumstances. Outside those situations there is no law against discrimination. E.g. There is no law against discriminating against smokers so it is fine to have a policy of recruitment of non-smokers only but not to recruit men only.

In Great Britain there are laws concerning discrimination on the grounds of sex, marital status, race and union membership. Also the Disability Discrimination Act 1995 introduces new discrimination laws where a person has a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to do normal day to day activities. In Northern Ireland, race discrimination is replaced by religious discrimination laws. It could also be said that the Rehabilitation of Offenders Act 1974 is also anti-discrimination law but it is not generally referred to in this context.

Additionally the Trade Union Reform and Labour Relations Act 1993 created yet another right which is of an anti-discrimination nature. An employee must not be subjected to any detriment just because he or she is carrying out duties as a safety representative or member of a safety committee or reacted to certain health and safety situations or shortcomings. This right is in section 22A EP(C)A 1978 (inserted by the 1993 Act) and the remedy is a complaint to an industrial tribunal in much the same way as for sex and race discrimination.

Race and sex discrimination is unlawful, not only in employment, but also in the provision of goods, services and accommodation.

Sex Discrimination

• The Sex Discrimination Act 1975 (SDA) prohibits sex discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services and in the disposal or management of premises.
• It also prohibits discrimination in employment against married people. Since the Civil Partnership Act 2004 came into force on 5th December 2005, the same protection is afforded to those in a civil partnership as those who are married. It is not unlawful to discriminate against someone because they are not married.
• Victimisation because someone has tried to exercise their rights under the SDA or Equal Pay Act is prohibited.
• The SDA applies to women and men of any age, including children.
• Discriminatory advertisements are unlawful but only the Equal Opportunities Commission can take action against advertisers.
• The SDA applies to England, Wales and Scotland.

What is sex discrimination?

The SDA prohibits direct and indirect sex discrimination. There are special provisions about discrimination on the grounds of gender reassignment, pregnancy and maternity and harassment in employment. Part I of the SDA describes the forms of discrimination to which the SDA applies.

In general, it is unlawful for an employer to discriminate directly or indirectly on grounds of sex or marriage in:

• Recruitment (although sex discrimination will be lawful if one of the defined genuine occupational requirements applies e.g. the job needs to be held by a man to preserve privacy and decency, or a role in a performance needs to be held by a woman for reasons of authenticity).
• Treatment at work (but note that claims relating to discrimination in contractual pay and benefits are brought under the Equal Pay Act).
• Dismissal.

Direct sex discrimination

This is where a woman (or man) is treated less favourably than a person of the opposite sex in comparable circumstances is, or would be, because of her (or his) sex.

Indirect sex discrimination

This is where a provision criterion or practice is applied (or would be applied) to both sexes but which puts one sex (or married persons) at a particular disadvantage and cannot be shown to be a proportionate means of meeting a legitimate aim. For example, a requirement to work full-time might be unlawful discrimination against women.

Discrimination on grounds of gender reassignment

There are special provisions prohibiting discrimination on the grounds of gender reassignment in the employment field with certain exceptions. Harassment on the grounds that someone intends to undergo, is undergoing or has undergone gender reassignment is also expressly prohibited by the SDA.

Discrimination on the grounds of pregnancy or maternity

There are special provisions in the SDA prohibiting discrimination on the grounds of pregnancy or maternity leave in employment. If a woman can show that ‘but for’ her pregnancy or maternity leave, she would not have suffered less favourable treatment, this is sex discrimination. She does not have to compare herself to how a man was or would be treated.

Harassment

There are special provisions in the SDA prohibiting harassment in employment, vocational training and further education. Harassment is defined as either:

• unwanted conduct on the grounds of the recipient’s sex or;
• unwanted verbal, non-verbal or physical conduct of a sexual nature

Examples of harassment include: –

1. Insensitive jokes and/or pranks;
2. Lewd comments about appearance;
3. Unnecessary body contact;
4. Displays of sexually offensive material, for example pin-ups;
5. Requests for sexual favours;
6. Speculation about an employee’s private life and/or sexual activities;
7. Threatened or actual sexual violence;
8. Threat of dismissal, loss of promotion etc. for refusal of sexual favours.

In all cases the conduct must have the purpose, or the effect of violating the recipient’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient.

It is also harassment to treat somebody less favourably because they have rejected or submitted to either type of harassment described above.

Harassment on the grounds that someone intends to undergo, is undergoing or has undergone gender reassignment is also expressly prohibited by the SDA.

Discrimination on grounds of sexual orientation

The SDA has been held by the courts not to prohibit discrimination on the grounds of sexual orientation. Discrimination on the grounds of sexual orientation in the employment field is unlawful under the Employment Equality (Sexual Orientation) Regulations 2003.

Employees (and potential employees) have rights under the SDA whatever their length of employment and whatever hours they work.

The SDA applies even if some of the work is to be done outside Great Britain. Even if the employee works wholly outside of Great Britain, they are still covered by the SDA if their employer has a place of business at an establishment in Great Britain and the work is for the purposes of the business carried out at that establishment; and the employee is ordinarily resident in Great Britain at the time when he applies for is offered the employment, or at any time during the course of the employment.

The SDA also protects people who are not “employees” in the sense required for some other employment rights, such as the right not to be unfairly dismissed. It protects people engaged under a contract personally to execute work or labour. Contract workers whose labour is supplied by their employer to another person (the principal) are protected against discrimination by the principal. Office holders are now also protected under the SDA. There are special provisions prohibiting discrimination

• by firms against partners or potential partners
• by trade unions and employers’ organisations against members or potential members
• by authorities or bodies in conferring authorisations or qualifications needed for or facilitating engagement in a particular profession or trade
• by people providing vocational training including all forms of unpaid practical work experience and vocational guidance
• by employment agencies
• by or in relation to barristers or advocates.

Price v Civil Service Commission (1977)

A post of executive officer in the Civil Service Commission was advertised with a specific age range for applicants of between 17 and a half and 28 years. Mrs. Price, aged 36, complained that this was indirect discrimination because, in practice, many women within that age group would be out of the job market due to family commitments and hence the number of women within the age range who could comply would be significantly less than men. The case was proved.

It is not enough to show that there is a discriminatory condition or requirement, it must also be shown that it works to the disadvantage of the person in question. In the case of Mrs. Price the age range requirement was to her disadvantage because she was older.

If however, the need for the condition or requirement can be justified e.g. because of operational requirements of the employer’s business, then it cannot amount to indirect unlawful discrimination. So, if a job requirement is that the applicant is at least 6 feet tall, that will be a discriminatory condition (because significantly fewer women could comply with that requirement than men) but if the nature of the job is such that it needs someone tall to do the job, then that will not be unlawful indirect discrimination.

The question of justification is only relevant to indirect discrimination, not direct discrimination; in other words, it is never possible to justify direct discrimination. E.g. only short listing men for a job as a restaurant manager is direct discrimination and cannot be justified even if all the restaurant staff are female who have said they will not work under a female boss.

There are however circumstances in which direct or indirect discrimination is not unlawful, if it can be properly claimed that the job can only be done by men or women. This is in section 7 SDA and is known as the genuine occupational qualification. The qualifications relevant to the hotel and catering industry are as follows

1. The job needs to be held by a man or woman to preserve decency or privacy because the job involves physical contact with men or women in circumstances where they may object to someone of the opposite sex, or because the persons involved are in a state of undress or using sanitary facilities. E.g. Toilet attendant.

2. The job provides personal, welfare, educational or similar services which can most effectively be provided by a man or woman. E.g. beauty therapist.

3. The job is likely to involve duties in countries whose laws or customs require the job to be done by a man or woman.

4. The job is one of two to be held by a married couple.

5. The establishment is a hospital, prison or other establishment for men or women as the case may be, providing special care, supervision or attention and the job should reasonably be held by someone of that sex.

There are also certain exceptions to the sex discrimination laws, but the only relevant exceptions are as follows:

• Communal accommodation – if an employer provides living accommodation for employees which is only suited to one sex, e.g. because of communal washing or sanitary facilities, then the employer may discriminate by excluding one sex from that accommodation if reasonable to do so. The question of whether it is reasonable includes whether it would be reasonable to adapt the accommodation e.g. by putting in separate toilets. However, staff of the excluded sex must be compensated in some other way, e.g. if a hotel in a particular location can only get staff by providing accommodation and cannot get planning permission to convert the living accommodation to provide separate male and female facilities then it would be reasonable to limit accommodation to female staff and pay male staff a living out and travel to work allowance.
• Positive discrimination – discrimination is referred to as positive where it aims to promote the employment prospects of one sex rather than another. An employer can legitimately provide training exclusively for one sex if in the previous 12 months there have been no, or comparatively few, persons of that sex doing a particular job. The employer can also encourage people of that sex to apply for jobs but may not discriminate by preferring such applicants when considering who to promote or appoint.

Employment related claims are brought in the employment tribunal. Strict time limits apply: 3 months (less one day) from the act of discrimination for employment tribunal claims.

Possible remedies include:

• A declaration that unlawful discrimination has occurred.
• Compensation for financial loss, injury to feelings and injury to health with interest.
• In employment tribunals, a recommendation that the employer take action which will reduce the effect of discrimination on the complainant.

Discrimination is not always easy to prove even if it is recognized in the first place, and often employees may be unwilling to consider taking action against an employer. This situation can be tackled by the Equal Opportunities Commission (EOC) which is an organization created under the SDA.

The EOC has various duties under the SDA including promoting equality of opportunities generally, but additionally there are specific powers which should be noted.

A discriminatory practice is conduct which constitutes indirect discrimination and if there is a belief that an employer may be operating a discriminatory practice then the EOC can carry out a formal investigation and issue a report. Furthermore, the EOC can issue a non-discrimination notice which may require an employer to change his or her practices to avoid those practices being discriminatory.

The EOC has also issued a code of practice to endeavor to eliminate sex and marriage discrimination. Breach of the code is not unlawful but in proceedings under the SDA and industrial tribunal can take into account any failure to follow the provisions of the code.

Race Discrimination

Discrimination on racial grounds in employment is made unlawful by the Race Relations Act 1976 (RRA 1976) which is similar and in some cases identical to the SDA 1975. It also applies in a similar way as the SDA 1975, to certain self-employed persons.

Racial grounds are colour, race, nationality, or ethnic or national origins. The expression ethnic origins can include religious groupings if they are of a particular ethnic origin.

Mandla v Dowell Lee (1983)

A Sikh boy was refused a place at a school because the boy wore a turban instead of the regulation school cap. Although Sikhs were a religious grouping, they were of common ethnic origin and therefore discrimination against Sikhs was racial discrimination.

In the same way as for sex discrimination, racial discrimination by an employer is prohibited at all stages of employment commencing with the recruitment stage and going through to dismissal. The definition of racial discrimination is as follows

• Direct discrimination means treating on racial grounds one person less favourably than another person.
• Indirect discrimination is applying a requirement or condition which appears to be non racial, but which creates a greater obstruction for, members of one racial group than another to their disadvantage, and which requirement or condition cannot be justified.

Direct discrimination would be refusal to employ or promote someone because of his or her colour.

Indirect discrimination is more difficult to recognize. There must be some condition or requirement not obviously discriminatory, fir example a prohibition on having a beard. That condition must be applied equally to everyone and yet significantly fewer people in on e religious group can, in practice, comply with the requirement, to their detriment.

If however the need for the condition or requirement can be justified in the circumstances, then there is no unlawful discrimination.

Singh v Rowntree Mackintosh Ltd. (1979)

The employers, who manufactured confectionary, had a works rule forbidding beards. Mr. Singh, a Sikh, applied for a job but his religion prevented him shaving off his beard. Accordingly he did not get the job.

Although there was a condition forbidding beards, and this discriminated against Sikhs, the condition was justified on the grounds of the employer’s need for the preparation of confectionary in hygienic conditions.

What is Racial Harassment?

Racial harassment is racial discrimination and is unlawful. Racial harassment may include :-

1. Abusive language and racist jokes;

2. Racial name calling;

3. The display or circulation of racially offensive, written or visual material including graffiti;

4. Physical threats, assault and insulting behaviour or gestures;

5. Open hostility towards workers or other individuals of a particular racial group, (including organised hostility) in the workplace;

6. Unfair allocation of work and responsibilities;

7. Exclusion from normal workplace conversation or social events, i.e. being “frozen out”.

OTHER UNLAWFUL ACTS

Further forms of discrimination which are unlawful include:

• Segregation of a person from others on racial grounds
• Instructions to one person who has authority over another to discriminate
• Inducing a person to do anything which is discriminatory
• Victimisation against any person because they have asserted their rights under race equality law or have assisted someone else to do so
• Advertising in a manner which indicates an intention to discriminate

As with sex discrimination, an employer can discriminate on racial grounds when one grouping is necessary for the particular job. This is covered in section 5 RRA 1976 and is limited to situations where being of one racial group is a genuine occupational qualification for the job. This arises in four situations but it is possible that the only relevant situation is if the job is working in a place where food and drink is provided in a particular setting, which requires a person of a particular racial group, e.g. a waiter or waitress in a Chinese restaurant.

There are certain exceptions to the race discrimination laws, but the only one of any relevance is the exception for positive discrimination which applies in similar circumstances to positive sex discrimination.

What are the penalties involved for racial discrimination?

If an Employment Tribunal finds that a complaint of racial discrimination is well founded it can make any of the following orders:

• Declaratory Order – an Order declaring the rights of the employee and the employer in relation to the act complained of
• Compensation – an Order requiring the employer to pay compensation to the employee. This may include damages for injured feelings and compensation for loss of opportunity in the labour market going beyond the actual loss of wages. There are no limits on compensation in the Industrial Tribunal for racial discrimination.
• Recommendation of remedial action – a recommendation that the employer take within a specified period action to alleviate or reduce the effect on the employee of any act of discrimination complained of.