Discrimination
The Equality Act 2010 protects individuals from unlawful treatment because of a protected characteristic
The protection includes employees, workers, those undertaking unpaid work, job applicants and former employees.
Under the Equality Act, protected characteristics are defined:
- age,
- disability,
- gender reassignment,
- marriage and civil partnership,
- maternity and pregnancy,
- race
- religion or belief,
- sex,
- sexual orientation
Clients often come to us because they are concerned that they have been singled out for unfair treatment. Sometimes you don’t know why you have been singled out. Colleagues might have tried to explain it as a personality clash with a manager, but unfortunately, and too commonly, your gut instinct may be that the reason for the treatment is because of a protected characteristic.
If this is happening to you, you must seek advice as soon as possible and we will discuss the issues with you and your options. This is because of the time limits in bringing claims to the Tribunal.
When we speak, we will discuss the reasons why you fear you have been subject to discrimination. Discrimination can be:
- an explicit comment
- a course of conduct that might have taken place over several months or even years
- a recent trigger event like the start of a disciplinary process or the (promotion of a peer).
Direct and indirect discrimination
Direct discrimination is when you have been treated less favourably because of a protected characteristic.
For example, a refusal to offer a training course to you because you are “too old” is offered to recent graduates.
Indirect Discrimination is when there is a particular policy or way of working that applies to everyone but puts people with a protected characteristic at a disadvantage, and that disadvantage affects you.
For example, a requirement that all managers must work full-time.
Harassment
Harassment is when you are treated in a way that violates your dignity or creates a hostile, degrading, humiliating or offensive environment. We discuss sexual harassment separately here.
For example, you have had some disability-related sickness absence and you are teased for being a slacker.
Victimisation
Victimisation is when you are badly treated because you have complained of discrimination, or helped someone else with their case, and there is retaliation against you.
You previously complained of sexist comments your manager made and when bonuses were awarded, you are told that you are not eligible for a bonus as you are not a team player.
How to prove discrimination
The standard of proof in discrimination cases is the normal civil standard, namely whether, on the balance of probabilities (i.e. ‘more likely than not’ or 51% likely) discrimination occurred.
The burden of proof has two stages:
- First, the worker must prove facts from which an employment tribunal could conclude, in the absence of an adequate explanation from the employer, that discrimination had occurred (not could have occurred). This is often referred to as the worker establishing a ‘prima facie’ case.
- If a prima facie case is established, the burden of proof then shifts onto the employer to prove that it/he/she did not commit discriminatory conduct.
Evidence in direct discrimination cases
Employment tribunal cases where there is strong, direct evidence of discrimination are rare. Cases where there is clear evidence of discrimination tend to settle without a hearing because most employers want to avoid the adverse publicity those hearings might attract.
In most discrimination cases, an employment tribunal makes a decision based on what ‘inferences’ it can draw from the presented facts. As a result, there can often be lots of potentially relevant inference evidence which claimants can be tempted into using to prove their discrimination case. In most circumstances, claimants should resist that temptation as good points in a case can be discredited by a claimant arguing weak points which may be difficult to prove and lead to excessive and inconclusive evidence. This can have the effect of clouding the real issues, detract from any stronger evidence and unnecessarily lengthen the hearing.
Frequently asked questions about discrimination
Do I need comparative evidence?
Because in direct discrimination cases you need to show that you have been treated less favourably because of your protected characteristic, there is an inherent requirement to establish the someone (‘the comparator’), who did not or would not suffer unfavourable treatment. In most cases, it is impossible to show a real-life comparator where all the relevant circumstances are the same, and so it is necessary to present a hypothetical comparator and consider how they would have been treated. In practice, a claimant’s representative will often give both real and hypothetical comparators in an employment tribunal case.
Is my employer responsible for acts of discrimination by employees?
Employers will generally be liable for acts of discrimination by employees who are acting in the course of their employment. This is known as vicarious liability. Discrimination claims can also be brought directly against individuals, although it is rare for claims to be brought against an individual without a claim also being brought against the employer. If claims are brought against both the employer and individual(s), the employer can decide whether to try to defend itself separately from the individual(s) by arguing that it took all reasonably practicable steps to prevent the discrimination.
Do I need to raise a grievance?
The law does not require you to raise a grievance but, if you are still employed, in most cases you should do so before bringing a claim for discrimination, which you are entitled to do whilst you are still employed.
Do I qualify to bring a discrimination claim?
Yes, if you believe you have been discriminated against there is no length of service or other qualifying requirement.
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