Many of the sections within the previous pieces of legislation dealing with discrimination had overlapped, and the Act simplified the law and made it easier for all to understand and apply.
The Equality Act and protected characteristics
The Act makes it unlawful to discriminate against someone on the grounds of any of these characteristics: age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion/belief, sex (gender) and sexual orientation.
These are often referred to as protected characteristics.
The main types of discrimination are:
This occurs where a person is treated differently because he/she has protected characteristics (e.g. gender, race or sex).
Direct discrimination may even occur by association (where a person is treated differently because he/she is associated with a person who has a protected characteristic) or by perception (because a person appears to have a protected characteristic he/she is treated differently).
Direct discrimination may be failing to promote a person, dismissing them, or not employing them in the first place because of their protected characteristic.
This form of discrimination is not as obvious and can be unintentional. Indirect discrimination occurs when an organisation has a policy, requirement or practice that appears to apply to all, but its effect in practice disadvantages a particular group of people with a protected characteristic.
Indirect discrimination may require for example that a person should be of a certain height, or have worked for a long time before being eligible to apply for a particular role.
If the height/age requirement cannot be justified the organisation may be found to be discriminating against a particular group of people who find it difficult to meet the requirement.
This occurs where the conduct or behaviour is unwanted and relates to one or more of the protected characteristics. The conduct must have the effect or purpose of violating a person’s dignity or creating a hostile, intimidating, degrading, humiliating or offensive environment for the person receiving it.
Harassment can include name calling, threats, jokes, banter, being excluded, insults, and unwanted physical contact.
Victimisation happens when a person is treated differently because he/she has made an allegation of or supported a complaint of discrimination. It can even be where the person has given evidence relating to a complaint of discrimination, or raised a grievance concerning discrimination.
Examples of victimisation could include situations where an employee, having brought a discrimination claim against his/her employer and having remained in employment, was ostracised as a consequence.
Can discrimination be lawful?
Discrimination can be justified if the organisation can show that the policy/requirement it is trying to implement applies equally to all.
Another situation where it might be lawful to discriminate is where the organisation is trying to preserve its authenticity or dignity.
Care must be taken here though, because it is very rare that this type of requirement would be justified.
Positive action by employers
An organisation can take positive action to help job applicants where it thinks those applicants are disadvantaged because of their protected characteristics and/or are under-represented in the organisation, or whose involvement in the organisation is disproportionately low because of a protected characteristic.
Making reasonable adjustment
There is a duty on an employer to make reasonable adjustments where an employee is deemed to have a disability in situations where the knowledge of the disability has been brought to the attention of the employer or where it is reasonable to assume the employer should have known of the disability.
If the disability affects the work of the person, for example leads to lower performance or poor timekeeping, the employer should consider reasonable adjustments after discussion with the employee or obtaining a medical report.
Who is liable in cases of discrimination?
In most cases the employer would be responsible for the actions of his/her employees, with or without his/her knowledge.
If the employer can show that he/she has taken all reasonable steps – such as diversity training or tackling discrimination robustly when it has occurred – he/she may use this to show the employee has gone off on a ‘frolic of his or her own’ and that this had nothing to do with his employment.
Job applications and health
It is important at the recruitment stage that you do not ask questions relating to the health of a potential employee.
If they bring up any health issues that’s ok, but you as an employer cannot ask any questions about the person’s health. Only once you have selected the right candidate should you ask questions relating to his/her health.
A note on equal pay
Under the Equality Act men and women whether in full-time or part-time employment should not be treated less favourably in relation to pay, benefits and terms & conditions, where they are doing equal work.
This area of employment law and best practice is complicated and advice should be taken at every stage where issues of discrimination arise – call 0345 184 4615 to hear more about the Moorepay adviceline service specially suited to small and medium sized businesses.
Looking for more information? You may also wish to take a look at our free to download and easy-to-read Employment Law Guide.
Share this article
Want a round-up of stories like this delivered to your inbox?
Pop your email in to sign up for your monthly Focus newsletter:*
Ask Moorepay for expert advice on all things payroll and HR.
Francis has over 20 years’ experience of Employment Law and HR related issues gained in both large public and private organisations. As well as representing SMEs, Francis has worked in the Employment Department of a large regional law firm, advising preparing and representing cases on behalf of claimants.
Before joining Moorepay, Francis was a Senior Advocate where, in addition to maintaining a caseload of employment tribunal cases covering all aspects of employment law, he managed a team of advocates and an administrator.