Discrimination

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There are various strands of discrimination in the workplace which are capable of being brought before an Employment Tribunal. The Equality Act 2010 describes these strands as “protected characteristics”. The protected characteristics are:

  1. Age;
  2. Disability;
  3. Gender reassignment;
  4. Marriage and civil partnership;
  5. Pregnancy and maternity;
  6. Race;
  7. Religion or belief;
  8. Sex;
  9. Sexual orientation.

Direct discrimination

Direct discrimination occurs if a person (A) discriminates against another person (B) if, because of a relevant protected characteristic (1 – 9, above), A treats B less favourably than A treats or would treat others.

 

Indirect discrimination

Indirect discrimination applies to the following relevant characteristics:

  1. Age;
  2. Disability;
  3. Gender reassignment;
  4. Marriage and civil partnership;
  5. Race;
  6. Religion or belief;
  7. Sex;
  8. Sexual orientation.

 

A claim for indirect discrimination will arise if a person (A) applies to another person (B) a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

 

A provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if:

  1. A applies, or would apply, it to a person with whom B does not share that characteristic;
  2. It puts, or would put, persons with whom B shares that characteristic at a particular disadvantage when compared with persons with whom B does not share that characteristic;
  3. It puts, or would, put B at that disadvantage; and
  4. A cannot show it to be a proportionate means of achieving a legitimate aim.

Duty to make reasonable adjustments

Where a person has a disability for the purposes of the Equality Act 2010, an employer has the following duties:

  1. Where a provision, criterion or practice of the employer puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage;
  2. Where a physical feature puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled to take such steps as is reasonable to have to take to avoid the disadvantage;
  3. Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with persons who are not disabled, to take steps as it is reasonable to have to take to provide the auxiliary aid.

Harassment

A person (A) harasses another (B) if he or she engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of:

  1. violating B’s dignity, or
  2. creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

 

The relevant protected characteristics are:

  1. Age;
  2. Disability;
  3. Gender reassignment;
  4. Race;
  5. Religion or Belief;
  6. Sex;
  7. Sexual orientation.

 

A also harasses B if:

  1. A engages in unwanted conduct of a sexual nature; and
  2. the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

 

A also harasses B if:

  1. A engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex;
  2. the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B; and
  3. because of B’s rejection or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

 

Victimisation

A person (A) victimises another person (B) if A subjects B to a detriment because:

  1. B does a protected act; or
  2. A believes that B has done or may do a protected act.

 

A protected act is defined as the following:

  1. bringing proceedings under the Equality Act 2010;
  2. giving evidence or information in connection with proceedings under the Equality Act 2010;
  3. doing any other thing for the purposes of or in connection with the Equality Act 2010; or
  4. making an allegation (whether or not express) that that A or another person or another person has contravened the Equality Act 2010.
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