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JOIN WHICH? LEGAL

 

Discrimination rights

Discrimination is often used in the wrong context by employees as there is only a legal right to bring a claim based on specific grounds which are:

  • Sex and marital status

  • Sexual orientation

  • Gender reassignment

  • Race

  • Religion and belief

  • Age

  • Disability

There are 2 ways in which an employer can discriminate against an employee:

Direct Discrimination - where an employer treats someone less favourably for one of the grounds listed above for example, not employing females of a specific age on the basis that they might have children.

Indirect Discrimination - where an employer applies provisions, criterion or practices that might favour one group over another for example, holding meetings in pubs or having residential courses that employees must attend.

If you have a claim for discrimination you should follow the employer's grievance procedure before submitting a claim to the Employment Tribunal.  Claims to the Employment Tribunal have to be submitted within 3 months of the date of the act complained of.

 

Damages

A claim submitted to the Employment Tribunal may consist of some or all of the following:

  • Compensation for dismissal
  • A basic award (calculated by length of service, age and wages)
  • Loss of and future loss of earnings
  • Loss of unfair dismissal protection
  • Compensation for discrimination
  • Any lost earnings and benefits
  • Injury to feelings
  • Aggravated damages
  • Personal injury where there has been a resulting psychiatric illness
  • Interest

 

Sex Discrimination

An employer must not discriminate on the grounds of sex or marriage and it applies to men as well as women.

Direct discrimination means treating a man or woman less favourably than they would a person of the opposite sex.  There has to be a comparator in order to bring a claim.

Indirect discrimination is where an employer applies a provision, practice or criterion that would apply equally to men and women but puts a woman at a particular disadvantage when compared to men and which cannot be shown to be a proportionate means of achieving a legitimate aim.  For example, a refusal to allow employees to work from home or a requirement to work without set hours, but as and when required.

A claim for discrimination will not succeed if the employer can show that the provision, criterion or practice was justifiable.  The burden of proof lies with the employer to show this.

Genuine Occupational Qualification

Restrictions on discrimination will not apply where being a man is a genuine occupational qualification for the job such as the job needs to be held by a man in order to preserve decency or privacy, or due to the degree of physical contact required.

A claim for discrimination can be brought in regards to selection and recruitment (you do not have to be employed to bring a claim if your claim relates to pre-employment procedures).

Any claim should be commenced using the employer's grievance procedures and a claim in the Employment Tribunal must be submitted within 3 months of the date of the act complained of.

Racial Discrimination

It is unlawful to discriminate against someone on the grounds of race, colour, nationality and ethnic or national origins.

Racial discrimination can be direct or indirect:

Direct discrimination is where the employee has been treated less favourably on racial grounds.

Indirect discrimination is where the employer applies a provision, criterion or practice which applies equally to all workers but puts employees of the same race, ethnic or national origin at a particular disadvantage and cannot be sown to be a proportionate means of achieving a legitimate aim.

Genuine Occupational Qualification

Restrictions on discrimination will not apply where it can be justified having regard to the nature of the employment or it is proportionate to apply that requirement in the particular case.  For example, the holder of the job provides that persons of a specific racial group with personal services promoting their welfare, and those services can most effectively be provided by a person of that racial group.

Discrimination can occur prior to, during and post employment.

Discrimination on the grounds of sexual orientation

It is unlawful to discriminate on the grounds of sexual orientation, which is defined as sexual orientation towards persons of the same sex, persons of the opposite sex and persons of both sexes.

Direct discrimination occurs when the employer treats and employee less favourably than he would treat others due to their sexual orientation.

Genuine Occupational Qualification

Restrictions on discrimination will not apply where it can be shown that having regard to the nature of the employment a specific sexual orientation is a genuine and necessary occupational requirement.

An employee should follow the employer's grievance procedure if they wish to make a claim of discrimination but must submit a claim to the Employment Tribunal within 3 months of the date of the act complained of.

Discrimination on the grounds of gender reassignment

It is unlawful to discriminate against someone on the grounds that a person intends to undergo gender reassignment, or is undergoing gender reassignment or has at some time in the past undergone gender reassignment.

The Gender Reassignment Act 2004 provides transsexuals with legal recognition in their acquired gender which will follow from the issue of a full gender recognition certificate from the Gender Reassignment Panel (full details can be found at http://www.grp.gov.uk/aboutus.htm)

Genuine Occupational Qualification

It may not be unlawful to discriminate on grounds of gender reassignment where a person's sex is a genuine occupational qualification for that job and the employer can show that this treatment of the person is reasonable.

An employee should follow the employer's grievance procedure if they wish to make a claim of discrimination but must submit a claim to the Employment Tribunal within 3 months of the date of the act complained of.

Discrimination on the grounds of religion and belief

It is unlawful to discriminate against a worker because of their religion or belief, or lack of religion and belief.

The law defines religion and belief as any religious or philosophical belief and includes all major religions, as well as less widely practices ones.  Employees are also protected if they do not follow any religion or belief and the employer discriminates against them because of this.

Direct discrimination occurs when the employer treats A less favourably than he would treat other people (for example refusing to employ someone of a specific religious belief).

Indirect discrimination occurs when the employer applies a provision, criterion or practice to all employees but which puts people of a particular religion or belief at a particular disadvantage and cannot be shown to be a proportionate means of achieving a legitimate aim.

National security

Any act done for the purpose of safeguarding national security and can be justified for this purpose will not be unlawful

Genuine Occupational Qualification

It will not be unlawful to discriminate on the grounds of religion and belief if, having regard to the nature of the employment, being of a specific religion or belief is a genuine and necessary occupational requirement and it is proportionate to apply that requirement.

An employee should follow the employer's grievance procedure if they wish to make a claim of discrimination but must submit a claim to the Employment Tribunal within 3 months of the date of the act complained of.

Age discrimination

It is unlawful to discriminate against someone on the grounds of their age.

Direct discrimination occurs when an employer treats someone less favourably on the grounds of their age than they would treat another employee.

Indirect discrimination will occur where a seemingly neutral provision, criterion or practice put persons of a certain age at a particular disadvantage compared to other persons and the provision, criterion or practice is not a proportionate means of achieving a legitimate aim.

Genuine Occupational Qualification

It may not be unlawful to discriminate on the grounds of age if there is a genuine and determining occupational requirement and it is proportionate and necessary for the employer to apply the requirement.

Retirement

There is a national default age of retirement of 65 so generally there will be no discrimination if employers retire employees at 65 or above.  Employees must follow a strict procedure if they wish to retire employees at any age, giving not more than 12 months and not less than 6 months notice of the intended retirement date and must inform the employee of the right to request to work beyond that date.  If employees wish to work beyond the employers retirement age then employers have a duty to consider that request.

An employee should follow the employer's grievance procedure if they wish to make a claim of discrimination but must submit a claim to the Employment Tribunal within 3 months of the date of the act complained of.

Disability Discrimination

It is unlawful to treat a disabled person less favourably because of a reason relating to their disability.

A disability is a physical or mental impairment which has a substantive and long-term adverse affect on his ability to carry out normal day-to-day activities in respect of one or more of a list of abilities including:

  • Mobility
  • Manual dexterity
  • Ability to lift, carry or otherwise move everyday objects
  • Speech, hearing or eyesight
  • Memory or ability to concentrate

Examples (from legislation and case law) include:

Impairments affecting sight and hearing

Learning difficulties

Cancer and HIV

Depression

Back injury

Employers are required to make reasonable adjustments to working conditions or the workplace where that would help to accommodate a disabled person (see "What is a reasonable adjustment"?)

Useful links and documents

Case Studies