The Equality Act 2010 offers protection against discrimination in the workplace and services for nine (equally) protected characteristics:
- Gender Reassignment
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Religion or Belief
- Sexual Orientation
An employee who makes a claim of discrimination can do so on the grounds of a single protected characteristic or a number of single, but unrelated characteristics. With disability, this could mean that somebody who is older and also has a disability feels they have been discriminated against on both grounds.
The EqA offers protection against discrimination, which is classified into six types:
- Direct Discrimination
- Indirect Discrimination
- Discrimination arising from a disability
- Failure to make reasonable adjustments
Direct Discrimination occurs when a person is treated less favourably directly because of:
- A protected characteristic they possess (direct discrimination)
- A protected characteristic of someone they are associated with (direct discrimination by association)
- A protected characteristic they are thought to have, regardless of whether this perception by others is correct or not (direct discrimination by perception)
Indirect discrimination occurs where a provision, criterion or practice is applied equally to a group of individuals, but has (or will have) the effect of putting those who share a protected characteristic at a particular disadvantage when compared to others in the group, and we are unable to justify it.
In other words: your policies, procedures, rules and requirements – our way of doing things – may not always be appropriate for people with disabilities.
Harassment is ‘unwanted conduct’ related to a protected characteristic or ‘of a sexual nature’ with the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The harassment can be:
- Verbal, written or physical
- Based on the perception of unwanted behaviour and whether it is reasonable to feel that way (regardless of harasser’s intention or perception).
- Can also apply it they are perceived to have a protected characteristic (i.e. it is not known whether the person is disabled, but the harasser thinks they are and acts in a discriminatory way because of this).
- Can also apply to employees harassed because they are associated with someone with a protected characteristic.
- Can also apply to an employee who has witnessed the harassment and this has a negative impact on their dignity at work or the working environment.
- Whilst employers are not responsible under the EqA for harassment of an employee outside the organisation (such as customers or service users), a claim of harassment can be made if an employer fails to take reasonable steps to prevent it.
Victimisation is when an individual is treated less favourably than others for:
- Making an allegation of discrimination
- Supporting a complaint of discrimination
- Giving evidence relating to a complaint about discrimination
- Doing anything else for the purposes of (or in connection to) the EqA
This includes if an employee is suspected of doing one of these things and even if the information or evidence they give is inaccurate (if given in good faith).
Discrimination Arising from A Disability
Discrimination arising from a disability is where a person is treated unfavourably because of their disability.
Failure to Make Reasonable Adjustments
Failure to Make Reasonable Adjustments is where steps have not been taken to remove substantial barriers applying for a role or at work for a disabled employee because of a disability.
Exemption and Exceptions – Where Discrimination is Lawful
Sometimes employers will claim that discrimination is necessary because of an ‘occupational requirement of the job’ or necessary to meet business needs. Justifying this can be complicated.
An occupational requirement for a role that would discriminate against a protected characteristic (in this case, disability) must be justified against three requirements (all three must be applied):
- Be crucial to the post, and not just one of several important factors.
- Relate to the nature of the job.
- Be a ‘proportionate means of achieving a legitimate aim’. If there is any reasonable and less discriminatory way of achieving the same aim, it is unlikely that employers could claim an occupational requirement.
Justifying discrimination as a ‘proportionate means of achieving a legitimate aim’ may allow discrimination in limited circumstances. To justify this employers must show:
- There is a legitimate aim such as a good business reason other than just cost.
- The actions are proportionate, appropriate and necessary
Before attempting to justify, employers must consider whether there is another way to achieve this that is less discriminatory – i.e. making reasonable adjustments.
Risks, Penalties and Liabilities of Discrimination
Both employers and employees who allegedly carry out the discrimination can be held responsible and liable under the EqA. This includes any actions an employee takes ‘in the course of their employment’, which can include at a social gathering with colleagues or through the use of their personal social media accounts.
Employees and employers may have to pay compensation if an Employment Tribunal finds in favour of the claimant. Compensation awards for disability-related claims are unlimited.
The employer may be held less liable if it can show they took all reasonable steps to prevent discrimination, harassment and victimisation. An employers training, culture, policy & practices and handling of discrimination will be important factors in showing this.