Discrimination

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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 unfavourably because of something arising in consequence of that person's 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 unfavourable treatment was a proportionate means of achieving a legitimate aim. 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 applies to a woman a provision, criterion or practice which is applied equally to a man but which puts women in general at a particular disadvantage compared to men. The woman herself must be put at that disadvantage. The same applies the other way round with a provision, criterion or practice applied to a man. Consider, for example, an employer who abolishes a flexi-time arrangement. This will put women at a particular disadvantage compared with men because of child care commitments and their need for more flexible working arrangements. A woman bringing a complaint must be able to show that she is herself put at this disadvantage.

An employer can defend a claim of indirect discrimination if it can show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.

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 or any provision, criterion or practice substantially disadvantage a disabled employee, an employer is under a legal duty to make reasonable adjustments to avoid 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.

Descrimination in Employment

 

Authorised and regulated by the Solicitors Regulation Authority
SRA ID No. 400316