One of the most important areas of which to be aware when considering recruitment is the law on discrimination. This is because, in addition to covering employees already engaged under a contract of employment, it also applies to job applicants.
The Equality Act 2010 lists the characteristics that are protected from unlawful discrimination. They are the same as those that were protected under the legislation that existed before, namely:
- Gender reassignment;
- Marital and civil partnership status;
- Pregnancy and maternity;
- Religion or belief;
- Sexual orientation;
Employees and prospective employees are protected from discrimination, victimisation and harassment. They also benefit from the duty to make reasonable adjustments. There is even protection after the employment relationship has come to an end.
What is direct discrimination?
Direct discrimination is the less favourable treatment of a person because of a protected characteristic. It requires a comparison with how the person treats, or would treat others, although a hypothetical comparator can be used. The definition is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic (for example, with someone who is Jewish), or because the victim is wrongly thought to have it (for example, a disability).
There is no defence of justification for direct discrimination — except in the case of age where less favourable treatment that is a proportionate means of achieving a legitimate aim is lawful. It is irrelevant that an employer does not intend to discriminate or is not motivated by prejudice. The Equality Act 2010 specifically provides that it is not discrimination to treat a disabled person more favourably than a person who is not disabled, and racial segregation is always discriminatory.
What is indirect discrimination?
Indirect discrimination involves the application, to a person with a relevant protected characteristic, of a provision, criterion or practice, which applies or would apply equally to a person without that characteristic, but is such that it:
- would put persons with the relevant protected characteristic at a particular disadvantage compared to those without the characteristic;
- puts the victim at that disadvantage; and cannot be shown to be a proportionate means of achieving a legitimate aim.
The provisions on indirect discrimination therefore enable discriminatory policies and practices to be challenged. Indirect discrimination applies to all the protected characteristics, except for pregnancy and maternity. Its application to gender reassignment and disability is more recent.
Liability for discrimination?
Liability for discrimination is not always confined to the person who discriminates. Employers are vicariously liable for the acts of their employees done in the course of employment and a principal may be liable for the authorised acts of an agent, regardless of whether those acts were done with the knowledge or approval of the employer or principal.
How can you defend a claim of discrimination?
Employers have a defence if they can show that they took all reasonable steps to prevent the employee from doing that thing or anything of that description. The burden of proof is on the employer. For this reason, employers should protect themselves by maintaining equal opportunities policies and making sure that they are implemented in practice. This may involve ensuring that employees in supervisory roles have diversity training.
The Equality Act 2010 contains a general ‘occupational requirement’ defence to direct and indirect discrimination in recruitment, promotion, transfer, training and dismissal on the basis of all of the protected characteristics. It applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age — or not being a transsexual person, married or a civil partner– is a requirement for the work, and the person to whom the requirement is applied does not meet it (or, except in the case of sex, does not meet it to the reasonable satisfaction of the person who applied it). There is a test of justification (as with indirect discrimination) that the application of the requirement must be ‘a proportionate means of achieving a legitimate aim’.
If you a victim of discrimination or an employer defending a discrimination claim then at Aaryan Solicitors, we can provide you our legal expertise in discrimination matters.
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