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25 FAQs about discrimination
- Can I not just follow my instincts, when it comes to selecting amongst job applicants?
- Can I exclude a couple of men who have applied for jobs normally done by women?
- Can I give jobs to older women, who will not get pregnant?
- We prefer to take on younger workers, even though we sometimes get applications from older workers who are better qualified. Is this illegal?
- Do we have to include an otherwise suitable job applicant on the short list if we know they have had a recent brush with cancer?
- What do we do about an otherwise well-qualified candidate for a job dealing with customers, who turns out to have a severe facial disfigurement?
- What is meant by the duty to make 'reasonable adjustments'?
- We have few workers from ethnic minorities, although they make up a high proportion of the local population. Can we advertise specifically to them?
- We have a mixed workforce. Can we ask people to take literacy tests, as a recruitment requirement?
- Are we vulnerable to a charge of discrimination if an older manager never gets a bonus because they never get awarded enough points by their peers?
- Are we vulnerable to a charge of harassment because an Asian worker has heard a couple of colleagues making cracks about people from different ethnic groups?
- Can we be sued for discrimination on grounds of nationality, because we have refused to confirm the contract of a Syrian refugee?
- Is it discrimination if we refuse flexible working for a worker with a disabled relative?
- We have a female employee on her third official warning. She now says she is pregnant. Can we proceed with disciplinary action?
- If a woman wants to come back to work on a part-time basis, after having a child, is she entitled to the same benefits as before?
- We had two mothers and one pregnant woman amongst recent redundancies. Now they are claiming sex discrimination. Should we be worried?
- It is several months since we sacked a black employee who left, claiming race discrimination. We have heard nothing since. Can we relax?
- What are the penalties for a finding of discrimination?
- How long is it likely to be before a case comes to a tribunal, and how much will it cost to defend?
- How can we demonstrate that we oppose discrimination? And would it help if we were ever subject to a case?
- Apart from sex, race, disability and ethnic origin, are there any other forms of discrimination that we have to look out for?
- Some of our employees have been refusing to work with a colleague who is gay. What can we do?
- I overheard some of my employees involved in 'banter' about another employee's sexual orientation. Do I have to put a stop to the jokes?
- We employ workers of many different faiths. Do we have to give workers time off for religious observances?
- We have a good worker who has missed some training sessions because of his religious duties, and will not therefore be considered for promotion. Will that cause us problems?
1. Can I not just follow my instincts, when it comes to selecting amongst job applicants?
No. Your instincts might be discriminatory, whether you know it or not, in which case you may fall foul of the anti-discrimination legislation contained in the Equality Act 2010. The Act protects individuals against discrimination in employment on the grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. This extends to the process of selecting applicants for jobs, and applies to all employers, irrespective of size.
To stay on the right side of the law, ensure your selection criteria are objective, and that any requirements are justified, given the nature of the job. Do not make stereotypical assumptions (for example, that a woman could not work with heavy machinery), as they may be discriminatory. Also ensure that your selection process is not discriminatory (for example the location and timing of your interviews, and your interviewing and assessment techniques). Keep full records of your criteria and processes, and their application to all candidates, detailing the reasons for the decisions made.
2. Can I exclude a couple of men who have applied for jobs normally done by women?
No. This would be discriminatory. If, however, you can prove that being a woman is a Genuine Occupational Qualification (a GOQ) for the job, the discrimination would be lawful. This would normally apply only where:
- authenticity is involved - for example, where someone of a particular sex is required for an advertisement or television part
- personal services are required - for example, a social worker serving a particular ethnic group
- decency or privacy is involved - for example, for a job in a residential establishment, or involving physical contact
This defence is limited, and will be interpreted narrowly by an Employment Tribunal. You will not be able to use it to disguise an otherwise discriminatory reason for non-selection.
3. Can I give jobs to older women, who will not get pregnant?
You can give jobs to older women if you have reasonable grounds for believing them to be the best candidates. But if you are planning to take them on because of their age, rather than their competence, this will be age discrimination and unlawful - unless you fall within one of the few tightly-defined exemptions, or you can prove your actions are 'objectively justified'. Beware the case of the 19-year old worker in a gentleman's club in London, who won her age discrimination claim that she was sacked for being 'too young'.
'Objective justification' requires the use of 'proportionate means' in pursuit of a 'legitimate aim'. A 'legitimate aim' is not defined, and will differ from business to business, so it can be very difficult for anyone to judge whether a case is worth defending. Your recruitment policy could therefore turn out to be very expensive, in terms of both time and money, and you have absolutely no guarantee that the time or money will have been well spent. Is it worth it?
4. We prefer to take on younger workers, even though we sometimes get applications from older workers who are better qualified. Is this illegal?
Probably. It is unlawful to treat people differently on grounds of their age, unless such treatment falls within one of the statutory exemptions, for instance, pay related to the National Minimum Wage, or it can be 'objectively justified' - of which you must show real evidence (see 3). It will only be justified if it is a proportionate means of achieve a legitimate aim. For instance, to reward loyalty and experience, provided you expect business benefits from doing so, and the criteria apply equally to all employees in the same situation; or where it is necessary to comply with other legislation; or where there is a genuine occupational qualification.
If the age group you wish to attract is under-employed in your area, you might be able to rely on the exemption for 'positive action', but don't count on it, or not without talking it through with your lawyers first. Ask about indirect sex discrimination, too. If you decline to take on older workers who have had 'career breaks', the majority are likely to be women who have taken time off to care for their children during their early years.
5. Do we have to include an otherwise suitable job applicant on the short list if we know they have had a recent brush with cancer?
In general terms, any individual who can prove they have 'a physical or mental impairment which has a substantial and long-term adverse effect' on their ability to carry out day-to-day activities is protected under the anti-discrimination provisions of the Equality Act.
An individual with a progressive condition would be covered - even if there was no existing substantial adverse effect, or the condition was in remission - if it had produced an impairment which had some adverse effect on their current ability to carry out day-to-day activities, and was likely to lead to a substantial adverse effect over time. It can also cover impairments that 'go away', but are likely to recur, for example, a knee or back problem.
That definition would cover many forms of cancer. However, for the removal of any uncertainty, the definition of disability under the Act specifically includes most cancers, multiple sclerosis and HIV-Aids, as well as a wider range of mental illnesses.
The Employment Appeals Tribunal has ruled that employers can apply their sick pay policy to disabled employees who are absent because of their disability. So if, for instance, you normally cut back on the wages of people who are absent because of long-term sickness after a given period, you can do the same with people who are disabled, even though their absence arises because of their disability.
You can also rely on ‘objective justification’: if you have treated the job applicant unfavourably because of something arising in consequence of their disability, you may be able to justify it if the treatment is a proportionate means of achieving a legitimate aim.
The net result is to make it easier for you to take on people who are disabled, though tougher for them if they have to take time off because of their disability. Your best course is to base your decision on whether or not to shortlist on written, objective criteria, and to keep a record of how those criteria applied to all the candidates.
6. What do we do about an otherwise well-qualified candidate for a job dealing with customers, who turns out to have a severe facial disfigurement?
Less favourable treatment on the ground of 'disability' can be justified under the Equality Act only if the reason for it is both 'material to the circumstances' of the particular case, and 'substantial'.
Moreover, it is unlawful for an employer to treat a disabled person less favourably, on grounds of their disability, than they would treat a person not having that particular disability, whose relevant circumstances (including their abilities) are the same as, or not materially different from, those of the disabled person. It would, therefore, be unlawful for you to turn down a candidate, solely on the grounds that other employees, or customers, would feel uncomfortable dealing with them.
7. What is meant by the duty to make 'reasonable adjustments'?
The scope of the duty to make reasonable adjustments extends to any 'provision, criterion or practice applied by or on behalf of an employer'. It is not possible for an employer to argue that they were justified in failing to make an adjustment: the question is purely whether such an adjustment would have been reasonable. In deciding whether an adjustment would have been reasonable, the Employment Tribunal will take a number of factors into account:
- whether the changes would be effective
- whether the changes would be practical
- how much the changes would cost and how reasonable this would be in terms of the employer's finances
- whether any assistance (for example a grant) would have been available
- whether the changes would have breached other legislation, for example Health and Safety guidelines
- the nature of the employer's activities and the size of the undertaking
- (where the changes would be made in relation to a private household) the extent to which making those changes would disrupt that household or any person residing there
A trial period during which, for example, a disabled person works from home is unlikely, in itself, to count as a reasonable adjustment in a disability discrimination claim. Instead, it will be treated more in the nature of a test as to whether working at home would be a reasonable adjustment. Employers who refuse to allow a trial period of home working could be at a disadvantage if they then argue that allowing the disabled employee to work from home is not a reasonable adjustment, as they have not tested the idea out.
8. We have few workers from ethnic minorities, although they make up a high proportion of the local population. Can we advertise specifically to them?
Yes, but only with a view to encouraging them to apply: thereafter it is a question of the best person for the job. It would be just as illegal to take on someone because they came from an ethnic minority, as it would be to take them on because they were not.
An advertisement to people of a particular ethnic background may, in very limited circumstances, be lawfully placed if discrimination would be lawful for instance, because being of a particular ethnic background was a genuine occupational qualification for the job. So, for example, if the job could most effectively be provided by a person of a particular racial group because of cultural needs and sensitivities.
9. We have a mixed workforce. Can we ask people to take literacy tests, as a recruitment requirement?
Provided that you can justify the tests by the requirements of the job, yes. Otherwise, no. It would be reasonable to require people to demonstrate literacy if you wanted them to write sales letters, but not if you wanted them to fill cans. If you apply such criteria where they cannot be justified by the requirements of the job, you are at risk of a charge of indirect discrimination.
If you do impose a literacy test, you must require all candidates for that post to undertake it. Requiring applicants from ethnic minorities to undertake such a test, while others are excused, would be discriminatory. You will also need to consider disability discrimination issues. For example, partially sighted or blind employees should be provided with appropriate facilities (eg Braille).
10. Are we vulnerable to a charge of discrimination if an older manager never gets a bonus because they never get awarded enough points by their peers?
It depends on the reason for the lack of points. If the points are awarded according to an objective test (for example, the number of new clients introduced by the manager), it will not be discriminatory. However, if the reason they are not being awarded points is because of their age, it clearly will be discriminatory.
Anyone claiming discrimination has to prove that they were being treated differently and that the difference was due to discrimination.
It is not enough for a claimant to establish that there has been a difference in treatment which might possibly be due to discrimination: there had to be more than that. Only if the claimant can establish a probability of discrimination does the 'burden of proof' shift to the employer to prove that the difference is due to something else.
So the manager in this case would have to prove, not merely that there had been a difference in treatment, but also that it was probably due to discrimination. If they can do that, however, you will then have to prove that it was not down to discrimination. If you cannot do that, you, as the employer, will be held responsible unless you can show that you have taken such steps as are reasonably practicable to prevent your employees' discriminatory behaviour.
11. Are we vulnerable to a charge of harassment because an Asian worker has heard a couple of colleagues making cracks about people from different ethnic groups?
Yes. The Equality Act provides for harassment as a type of discrimination in its own right.
Under the Act, one person subjects another to harassment where on the grounds of race, ethnic or national origins, age, disability, sex and sexual orientation or gender reassignment he (or she) engages in unwanted conduct which has the purpose or effect of:
- violating that person’s dignity
- creating an intimidating, hostile, degrading, humiliating or offensive environment for them
This test can potentially be satisfied if the employee finds the remarks to be offensive, etc. The Tribunal would also look to see whether the conduct could reasonably be perceived as having that effect, taking all of the circumstances into account. The test is therefore ultimately objective, with a subjective element.
You, as the employer, will be liable unless you take reasonable steps to prevent any discriminatory behaviour. In a case in which an offensive remark made in discussions with a third party was held to be discriminatory (the supervisor making it was overheard by one of the people to whom it referred), both the supervisor and the employer were found guilty of racial discrimination and ordered to pay compensation. The employer’s fault was a failure to ensure that there was a clear policy on racial discrimination, and that everyone knew of it and followed it.
Reasonable steps to prevent discriminatory behaviour could include taking disciplinary action against offending employees, and ensuring that everyone is aware of your anti-harassment policy (see 21).
12. Can we be sued for discrimination on grounds of nationality, because we have refused to confirm the contract of a Syrian refugee?
Once refugee status has been granted, an individual has the same social and economic rights as a UK citizen, including full access to employment. So your refugee is entitled to the protection of UK employment legislation.
Discrimination is unlawful if it is on racial grounds, but racial grounds are defined under the Equality Act as any of the following:
- ethnic or national origins
If you are refusing to confirm the Syrian's contract on any or all of these grounds, you are at risk of a charge of discrimination; but if it is for other reasons it will not be discriminatory. If there are conduct or performance issues, however, a fair and reasonable disciplinary procedure should be followed, based on the relevant Acas Code of Practice.
Otherwise, provided that the two years' service qualification has been met, there could be a finding of unfair dismissal in the Employment Tribunal.
13. Is it discrimination if we refuse flexible working for a worker with a disabled relative?
Yes. Before 30 June 2014, only parents and carers had the right to ask for flexible working. But from 30 June 2014 the right was extended to almost all employees with at least 26 weeks' service. This includes both full-time and part-time employees.
If an employee has worked for you for at least a year and has children, they may also be entitled to unpaid parental leave. This applies to parents who have a child under the age of five or a disabled child under the age of 18. It also applies to parents who have adopted a child within the last five years while the child remains under the age of 18. For each qualifying child, the parent can take up to four weeks leave in a year subject to an overall maximum of 18 weeks.
All employees are entitled to unpaid time off to deal with emergencies involving a family member (such as a child) or a dependant.
The right to ask for flexible working does not apply to employees with 'employee shareholder status' who have agreed to give up some of their employment rights in return for free shares in the business.
14. We have a female employee on her third official warning. She now says she is pregnant. Can we proceed with disciplinary action?
Unfavourable treatment of a female employee because she is pregnant amounts to direct, unlawful, discrimination. In this case, however, since disciplinary proceedings were started before you knew she was pregnant, it would be difficult for her to argue (if poor conduct led to another disciplinary hearing) that she had been discriminated against because she was pregnant.
Be careful, however, to ensure that she is well enough to attend any future disciplinary hearings, that they are conducted at a convenient time, and that all normal disciplinary procedures are followed. Take account of the fact that her pregnancy might explain her conduct. Otherwise any dismissal may be procedurally unfair.
15. If a woman wants to come back to work on a part-time basis, after having a child, is she entitled to the same benefits as before?
Part-time workers are entitled to be no less favourably treated than comparable full-time workers on similar contracts in the same employment. In addition, women are protected from discrimination on grounds of maternity. Your employee is, therefore, entitled to the same benefits as her full-time colleagues, proportionate to her working hours.
The Part-Time Workers' Regulations provide you with a defence, if you can show that different treatment of a part-time worker is justified on objective grounds. For example, the administrative and other costs of calculating the pension benefits of part-timers may be so great as to provide you with a justifiable reason for changing their arrangements. But an Employment Tribunal would weigh the advantage to the employee against the detriment to you.
16. We had two mothers and one pregnant woman amongst recent redundancies. Now they are claiming sex discrimination. Should we be worried?
It is unlawful to select an employee for redundancy because she is pregnant. If you want to avoid claims for unfair dismissal and/or sex discrimination, ensure that your selection is based on objective criteria such as time-keeping, absence levels (ignoring maternity leave), and knowledge and/or skills. It is also unlawful to select an employee for redundancy because she is a mother, although it might be more difficult for her to prove sex discrimination because she would have to demonstrate that she had received less favourable treatment than comparable fathers. Be aware of the risk of indirect discrimination, too.
For example, you might want to keep on people who are willing to take on overtime from time to time, or to make part-time employees redundant before full-time employees. But either policy could indirectly discriminate against mothers, who are generally the main child carers, and may not be able to meet your selection criteria. Even if you applied the same criteria to both men and women, you would effectively be indirectly discriminating against women.
The European Court of Justice (ECJ) has accepted that increases in pay according to length of service can indirectly discriminate against women, because women generally work fewer years than men. Although the court accepted that, in general, length of service went hand in hand with experience, and experience would enable a worker to perform better, it also accepted the "serious doubts" the claimant had raised about such improvement in performance in this case. Where a worker can raise serious doubts about the benefit provided by extra experience, length of service may be a form of indirect discrimination.
Employers who expect their employees to carry out unpaid overtime also need to avoid the risk of unfair sex discrimination, in view of a European ruling. A part-time teacher in Germany worked 23 hours a week (as opposed to 26.5 hours expected of full-timers), and was only given time off in lieu, or overtime pay, if she worked more than an additional five hours in the week.
Since the employee often did not work as many as five extra hours per week, and thereby failed to qualify for overtime pay, and since more women than men work part-time, the court held that the practice was contrary to the principle of equal treatment between men and women, unless it could be justified on the ground of objective factors.
This echoes a previous discrimination case in which a court ruled that a female employee who can show "serious doubt" that longer service makes a worker better at the job, can claim that higher pay for longer-serving workers is sex discrimination, because women generally have shorter periods of service than men.
17. It is several months since we sacked a black employee who left, claiming race discrimination. We have heard nothing since. Can we relax?
A claim of racial discrimination must be made to an Employment Tribunal within a period of three months ‘beginning when the act complained of was done’.
The Employment Tribunal does have discretion to extend the time period in some discrimination cases when it would be ‘just and equitable’ to do so. A Tribunal would look at the reason for, and the extent of the delay, whether the complainant was professionally advised, whether there were any genuine mistakes based on erroneous information and what prejudice, if any, would be caused by allowing or refusing to allow the claim to proceed.
In your case, if the employee has not sent in a communication setting out complaints, or attempted to lodge an ET1 within the three-month period, they will not be entitled to an extension of time (unless the period is extended by the Court).
18. What are the penalties for a finding of discrimination?
If you are found guilty of discrimination, you will probably be ordered to pay damages to the employee (or job applicant) concerned. The damages are designed to put the individual in the position in which they would have been, had the discrimination not occurred. The award is likely to consist of compensation for the financial loss that the employee has suffered.
However, the compensation award might also include an element for injury to feelings. The compensation awarded can range from £500 for minor discrimination claims, to up to £40,000 for the most serious discrimination cases having a major effect on the individual concerned. There is no upper limit on the amount of compensation which can be awarded in discrimination cases. The Tribunal can also order you to take action to reduce or obviate the adverse effects on the individual of the act of discrimination. If you fail to comply, further financial penalties will follow.
19. How long is it likely to be before a case comes to a tribunal, and how much will it cost to defend?
Listing periods for Employment Tribunals vary, but it usually takes between three and six months, from the date that the claim is issued to the Tribunal hearing. However, it may take considerably longer.
The cost depends on the nature and complexity of the case, and to some extent on the area in which it is being brought. A straightforward, two day, unfair dismissal case would probably cost around £10-12,000, assuming that a solicitor (based outside London and the south east) was acting for you throughout. Discrimination cases are invariably longer and more complex - and therefore more expensive.
20. How can we demonstrate that we oppose discrimination? And would it help if we were ever subject to a case?
Make sure you have a written policy, and that it has been issued to all employees. Also ensure that your managers and supervisors are all trained in discrimination matters, and that you have effective monitoring procedures. It is vital that all steps which are reasonably practicable - including if necessary disciplinary action against employees who engage in discriminatory activities - are taken to provide a discrimination-free environment.
Such steps should help if you ever become subject to a discrimination case. If the discrimination has been practised by your employees against your clearly-established policies, it could mean that you escape liability altogether.
21. Apart from sex, race, disability and ethnic origin, are there any other forms of discrimination that we have to look out for?
Yes. It is also illegal to discriminate against anyone because of their sexual orientation, religion, religious beliefs or philosophical beliefs.
Government is currently consulting on extended discrimination laws to cover caste discrimination so that it becomes an aspect of race discrimination.
The default retirement of 65 has been abolished and it is illegal to compulsorily force anyone to retire, unless it can be objectively justified. Employees who want to carry on working are entitled to do so without having to make a request to do so.
You should also be aware of the following provisions under the Equality Act, which gathers existing discrimination law into one:
Associative and perceived discrimination: ‘associative discrimination’ remains unlawful and is extended to grounds of race, religion and belief, and sexual orientation.
- For example, a carer for a disabled child can claim disability discrimination if they were discriminated against because of their carer status, even though they were not themselves disabled.
Similarly, ‘perceived discrimination’ – where, for example, a man who is not gay is discriminated against because of a belief that he is – is now unlawful and employees can claim in relation to all types of discrimination.
Indirect discrimination: this takes place if an employer lays down a ‘provision, criterion or practice’ to employees which members of one group are much less likely to be able to comply with than others, and which is not justified by the requirements of the job.
- For example, you only employ factory packers who have GCSE English.
It is now extended to employees with disabilities. Employers will have to anticipate the effect their employment provisions, criteria or practices could have on employees with a very wide range of possible impairments – effects which could even be unique to one particular disabled person.
Disability: under the Act, the test of ‘discrimination arising from disability’ favours the employee: it means employers cannot treat disabled employees in a detrimental way because of their disability unless either:
- they can objectively justify it; or
- they can show they did not know (and could not reasonably be expected to know) that the employee had a disability.
Harassment: employers can no longer be held liable for harassment of an employee by a third party.
22. Some of our employees have been refusing to work with a colleague who is gay. What can we do?
It is illegal to discriminate against anyone in the workplace on the grounds of their sexual orientation. Your employees' conduct is likely to amount to harassment, defined in the regulations as conduct which violates someone's dignity, or creates an environment which is intimidating, hostile, degrading, humiliating or offensive.
Your equality policy will need to deal with this area of potential discrimination, and to avoid employer liability you must follow the procedures laid down under the policy. These will include speaking with the person who is being harassed, and the employees who object to working with him. Be prepared to back up your words with disciplinary action, if necessary.
23. I overheard some of my employees involved in 'banter' about another employee's sexual orientation. Do I have to put a stop to the jokes?
Yes. Under the legislation, it does not matter whether the 'banter' is about your employee's actual or perceived sexual orientation: what matters is the fact that your employee is the butt of these jokes. The fact that the jokes appear to be good-natured is also irrelevant. The test is not the intention of the people making them, but whether these jokes could reasonably be considered to have caused offence. The response of the victim is also irrelevant.
For example, in a Court of Appeal case in 2008, a heterosexual worker was teased by co-workers for being gay (because he had been to boarding school and lived in Brighton) even though they knew he was not (and he knew they knew he was not). The Court decided he had been harassed within the meaning of the sexual orientation regulations and was entitled to compensation.
24. We employ workers of many different faiths. Do we have to give workers time off for religious observances?
Not necessarily. You should, however, consider carefully whether it is essential that your workers are at work when they would otherwise be carrying out their religious observances. You may be able to adjust their hours to accommodate their religious observances or allow unpaid time off to allow them to perform their religious practices. The regulations do not require you automatically to allow people of religious faith increased time off for their religious practices: that would potentially be discriminatory to other employees who do not share their views.
25. We have a good worker who has missed some training sessions because of their religious duties, and will not therefore be considered for promotion. Will that cause us problems?
Probably. If your training sessions fall at times when the worker feels obliged to practice their religious duties, you should seriously consider whether it is possible for you to change your timing - otherwise you are very likely to be guilty of indirect discrimination. If you want to stick to your timing, it will have to be justified by the need to meet a proper business requirement which cannot be achieved by some other means.