What is discrimination?
It is unlawful to treat a person less favourably than you would treat someone else because of a reason related to that person’s sex, sexual orientation, race, age or religious belief. It is also unlawful to treat someone less favourably because of a reason related to a disability. This is called direct discrimination. In cases of disability discrimination, an employer will be able to defend a claim if he can show that the less favourable treatment was justified. It is for the employer to satisfy the Tribunal that there is justification and there will need to be compelling evidence of a substantial reason for the less favourable treatment. No such defence exists in other cases of direct discrimination.It is also unlawful to subject someone to harassment in the workplace for a reason related to sex, sexual orientation, race, age or religious belief. Harassment is unwanted conduct related to one of the discriminatory reasons (eg. sex) which violates someone's dignity or creates for that person an intimidating, hostile, degrading or humiliating environment.
Indirect discrimination
Legislation also makes unlawful what is called indirect sex discrimination. This is where an employer imposes a condition or requirement and the proportion of women who can comply with the condition or requirement is considerably smaller than the proportion of men who can comply with it or the other way round. Consider, for example, an employer who abolishes a flexi-time arrangement. This could have a disproportionate impact upon female employees. Because of child care commitments, it is possible that the number of female employees who could comply with the condition of non flexible working will be considerably less than the number of men who could comply. A woman bringing a complaint will also have to show that the condition or requirement is to her disadvantage because she cannot comply with it.
An employer can defend a claim of indirect discrimination if it can show that the condition or requirement is justifiable. An employer might, for example, have evidence of a compelling business reason for having to introduce a particular requirement.
There are similar provisions to prevent indirect discrimination on the grounds of race, age, sexual orientation or religious belief.
Proving direct discrimination
There is often no direct evidence of sex and race discrimination or of discrimination on the grounds of age, sexual orientation or religious belief. Where an employee can show less favourable treatment, an employer is unlikely to admit that the reason for it related to sex, race, age, sexual orientation or religious belief and indeed may not be consciously aware that this was the reason. It is for the employer to explain to the Tribunal the reason for the less favourable treatment. If the Tribunal is not satisfied with the explanation, it is entitled to find that the real reason was discriminatory.
How do you know if you have a disability ?
To bring a claim of disability discrimination, you must be able to show that you suffer from a disability under the legislation. Someone has a disability if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities. An obvious example would be someone with a long term leg injury who has consequent difficulty in walking and getting in and out of a car. The effect is long term if it has lasted for more than 12 months or is likely to last for longer than 12 months.
Duty to make adjustments to help disabled employees
Where workplace arrangements or terms of employment substantially disadvantage a disabled employee, an employer is under a legal duty to make reasonable adjustments to prevent the disadvantage. This could include physical adjustments in the workplace or things like changing working hours. What is to be expected as a reasonable adjustment will vary from employer to employer and will depend on different things such as the extent of the employer’s resources. A failure to comply with the duty to make reasonable adjustments is unlawful discrimination.
