PERS leaflet no 8 Dec 2015 Promoting, effective workplaces
Discrimination What you need to know about: What is discrimination? Who is covered by the law? Who can help you? We are committed to making our information accessible. If you require this leaflet in a different format or need other help to use our services let us know and we will do our best to help www.pers.org.uk
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Discrimination - the law The Equality Act 2010 protects individuals from unfair treatment and discrimination. This Act replaces previous legislation (such as the Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995 as well as more recent laws relating to Age, Sexual Orientation and Religion and Belief). It aims to simplify the law and ensure consistency for all people covered by the previous legislation. It also extends some protection to groups who were not previously covered. This leaflet outlines the ways in which the law protects you from discrimination in employment and what to do if you believe you have been discriminated against. There are links on page 8 where you can find out more about other aspects of the Equality Act, such as how it applies to service provision.
Protected Characteristics
It is unlawful to discriminate against people at work because of: • • • • • • • • •
Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion or belief Sex Sexual orientation
These are called ‘protected characteristics’. The information in this leaflet applies to you if you believe that you are being discriminated against because of any of the characteristics on this list. Pages 9 -12 of this booklet give more detail about each of these characteristics and how people who fall into these groups are protected by the law. If you think that you are being discriminated against because you are disabled (or because someone else is) you should also read PERS Leaflet No 13 Disability Discrimination. The law provides some additional protection for disabled people, such as the requirement to make reasonable adjustments. There are also some circumstances where there is less protection because of your age – different treatment based on age is not considered to be unlawful discrimination if the employer can show the treatment is ‘a proportionate means of achieving a legitimate aim’. See
page 10 for more information. 2
Who does the Equality Act apply to?
The Equality Act makes it unlawful for an employer to discriminate against job applicants, current employees and ex-employees because of their ‘protected characteristics’. The Equality Act applies to most employees, using a wide definition of ‘employee’ which includes full-time, part-time, temporary and casual workers and home workers. The Act also covers some self-employed people, agency workers, prison and police officers, fire-fighters, and some office-holders. Discrimination in vocational training, including practical work experience, is unlawful as is subjecting an ex-employee to a detriment or to harassment relating to a protected characteristic and arising from work.
What is meant by ‘discrimination’? The law protects you from various types of discrimination which are described below. There are some practical examples of these different kinds of discrimination on pages 12 -15 of this leaflet. It is called direct discrimination if your employer •
treats you less favourably than he/she treats another individual because of your protected characteristic.
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treats you less favourably than he/she treats another individual because you are associated with, or care for, someone with a protected characteristic.
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treats you less favourably than he/she treats another individual because he/she thinks you possess a protected characteristic even if this is not the case.
If an employer places requirements on the job that are harder for people with a protected characteristic to meet, it may be indirect discrimination. This happens when a requirement applies to everyone but has a disproportionate effect on some groups of people with a shared characteristic. For example more women than men are likely to find it difficult to comply with a requirement that they ‘must work full time’. Indirect discrimination can only be justified if it is ‘a proportionate means to a legitimate aim’, for example safeguarding, health and safety. The Equality Act also protects you from harassment in your employment. Harassment is defined as unwanted conduct which has the effect of violating a person’s dignity or creating an intimidating, hostile, degrading or offensive 3
environment. The Act covers harassment that occurs: •
because of your protected characteristic or a reason connected with it
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because someone perceives you to have a protected characteristic
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because you are associated with someone with a protected characteristic.
Your employer is responsible for ensuring that you are not subject to discrimination and harassment by your colleagues. Your employer also has a responsibility to protect you from harassment by a third or other party in the course of your employment. This could be anybody other than your employer and colleagues with whom you come into contact during the course of your work, for example an external contractor such as a window cleaner, a service user or a customer. In order for you to take a case against your employer for harassment of this sort: •
he/she must have failed to take reasonably practical steps to prevent you being harassed.
The law also protects you from victimisation. This occurs if you are subject to unfavourable treatment •
because you have made a previous claim or have made allegations of discrimination (against you or someone else) under any discrimination legislation or rules or
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because you have given evidence in connection with a discrimination claim.
Occupational requirements The Law allows an exception to the prohibition on direct discrimination in employment if there is a genuine reason why a person with a particular characteristic or ability is required for the job. This is called an ‘occupational requirement’. The requirement must not be a sham or pretext and there must be a link between the requirement, the job and the nature and context of the work. The employer must be able to demonstrate that applying the requirement is ‘a proportionate means of achieving a legitimate aim’. Examples of how the occupational requirement exception may be used can include jobs which require someone of a particular sex for reasons of privacy and decency or where personal services are being provided. 4
What action can you take? If you think you are being discriminated against in any way, you should first try to settle the matter informally. Find out if your company has an equal opportunities or antiharassment policy. It will have a procedure to follow. If not ask your trade union or a colleague for support. If appropriate, approach the aggressor and ask them to stop. Explain how their action is affecting you. Grievance If that does not resolve it, or if it is so serious or not applicable, you should formally write/submit a grievance to your line manager (provided he/she is not the cause of the problem in which case you send it to their line manager) outlining your concerns. Your employer can not protect you if they are unaware of the discrimination. You should then be invited to a meeting by your employer. You must be given the opportunity to take a companion to the meeting. This can be limited to a colleague or Trade Union representative though many organisations broaden this to a ‘mutually acceptable companion’. If you decide to take a companion, it is polite to inform your employer whom you have chosen. Your companion can address the meeting and confer with you, but cannot answer questions directly put to you. At the meeting you should be permitted to explain your grievance and how you think it should be resolved. Your employer may then adjourn for an investigation or decide on what action if any to take. This decision should be confirmed to you in writing. If you feel the issue has not been satisfactorily resolved you should appeal following your employer’s procedure. Early Conciliation (EC) If that does not resolve the issue, and you think you may have a claim against your employer you should first contact ACAS on 0300 123 1100 who will ask you to complete an Early Conciliation notification form. They will then contact you to gather information about the dispute you have with your employer. A conciliator will aim to make contact with both parties and talk through the issues to see if a solution can be found. You must contact ACAS within three months of the incident. The earlier the better as that will give you time to consider your next step if conciliation fails. If discrimination occurred over a period of time, the 3 month period begins to run from the date of the last act of discrimination. You can contact PERS or EASS, see below for advice on how time limits affect you. 5
ACAS will find out if your employer is prepared to offer you an out of court settlement for the alleged act of discrimination. If you accept the settlement, the case will be dropped. You should get advice before you accept a settlement to make sure that the offer is reasonable. Note You do not have to resign before contacting ACAS unless you are claiming constructive unfair dismissal – see PERS leaflet no. 11 Dismissal. Employment Tribunal (ET) If you decide to take your case further, to an Employment Tribunal (ET), and have your Early Conciliation certificate, you need to fill in an ET1 form which is available online (Google ET1). Gathering evidence You can use ‘Discovery’ to gather useful information to support your claim if you go to an ET. An ET can require your employer to grant you "discovery of documents" relating to the case, giving you access to documents such as minutes of meetings, equal opportunities policies. These can be used as evidence at tribunal. Legal remedies If the ET finds that there has been unlawful discrimination, it can make one or more of the following orders: •
Declaration order. This declares that your rights have been violated and tells your employer to end the discriminatory practice. If it continues, you can claim compensation.
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Recommendation order. This recommends specific action to reduce the adverse effects of the discrimination. For instance, if you were refused a job or a promotion because of discrimination, you would not be given preferential treatment at another interview, but the next interview panel would be told why your previous application failed and that this time they must comply with the law. The ET can also make recommendations that the organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not only on the person making the claim. For example, the ET might specify that an employer must train all staff about the organisation’s bullying and harassment policy.
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Compensation order. This requires your employer to pay your damages, including compensation for 'injury to feelings'. There is no upper limit to the 6
amount of compensation that can be awarded.
Who can help you? The Equality Advisory and Support Service (EASS) It replaced the EHRC helpline in Nov 12.The contact numbers for the new service are: •
Phone: 0800 444 205
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Mon – Fri 09.00 – 20.00, Sat 10.00 – 14.00 closed on Sundays and Bank Holidays Textphone: 0800 444 206
Website http://www.equalityadvisoryservice.com/ The EASS . • • • • •
Gives bespoke advice to individuals on discrimination issues. Explains legal rights and remedies within discrimination legislation. Explains options for informal resolution and helps to pursue them. Refers people who cannot or do not wish to go down this road to conciliation or mediation services. Helps people who need or want to seek a legal solution by helping to establish eligibility for legal aid and if they are not eligible, to find an accessible legal service or to prepare and lodge a claim themselves.
EASS works closely with EHRC, referring on potential test cases and sharing information to inform the EHRC's wider work on equality.
Advisory, Conciliation and Arbitration Service (ACAS) ACAS can provide you with information about employment law issues through their Confidential helpline 0300 123 1100 Monday-Friday, 8am-8pm and Saturday, 9am1pm Their advisers can talk to you about your rights, identify options and help you to decide next steps. They will offer guidance and advice, but cannot represent or recommend options. They will be automatically involved if you take a case to an Employment Tribunal. Their website www.acas.org.uk contains downloadable information about various aspects of your rights at work. Callers with hearing or speech impairments can also use Text Relay by dialling 18001 08457 474747.
The Citizen’s Advice Bureau 7
The CAB website www.adviceguide.org.uk has information about discrimination and allows you to search for the bureau nearest to you where you can get free advice. It gives opening times and directions, as well as details as to whether specialist help is available. All CABx are free and independent and all will give some help with employment problems. However since CABx rely largely on volunteers for their advice work, not many of them have staff with specific expertise in employment rights and only a few bureaux can assist with tribunal representation. Try phoning first. Sometimes you may need to go along to the bureau if the phonelines are very busy.
Community Law Centres Community Law Centres are also free and independent and will frequently employ staff who specialise in employment rights and some also offer specialist advice about discrimination. However, most Law Centres are forced by lack of resources to limit the numbers of cases that they can represent at tribunal or at other courts. Some Centres give advice over the phone, others ask you to make an appointment and some operate drop-in sessions at particular times. Do phone to check before you go along. To find out if there is a law centre in your area visit www.lawcentres.org.uk Community Legal Advice (CLS Direct) You can ring the CLS Helpline on 0845 5454345 for information and advice about agencies in your area that are funded to provide legal help and representation or look on their website at www.communitylegaladvice.org.uk They can provide free help to people on low incomes with limited savings. You can use their website to calculate whether you are eligible for free advice.
Insurance cover Some home and other types of insurance policies cover you for free legal employment advice from their own helplines or solicitors. Some policies will also allow you to seek legal advice from a provider of your choice, including community law centres, and reimburse the costs. Make sure you check your insurance options before you commit yourself to paying legal fees.
Pay & Employment Rights Service PERS can offer employment advice on a pay as you go basis at reasonable rates contact 01924 428030 for details of current charges. You will also find a range of publications on the website at www.pers.org.uk
Trade unions 8
If you are a member of a Trade Union before your employment problem arises they will be best placed to help, although they are unlikely to help if you join once you have a problem. Trade Union membership will also often entitle you to free advice on employment disputes from their own legal experts or from nominated solicitors as well as giving you access to advice and support from branch officials. There are also some agencies who specialise in giving advice to particular groups of people (for example older people, disabled people etc.) some of these are listed in the PERS action pack where to go for more help with employment problems. Where specialist employment services are available this is indicated. Others just offer general information advice and support which may be useful. It is worth checking locally as there may be other specialist services available in your own area. If you are unable to obtain advice or representation, a useful publication which explains how Employment Tribunals work is ‘The Claimants Companion’ by Tamara Lewis. This is a good guide for representing yourself, although it is written for advisers. It can be downloaded from www.londonlawcentre.org.uk/publications
Protected Characteristics and how the law applies to them Age The law protects people of all ages. Age discrimination occurs when a person is treated less favourably because they are a particular age (e.g. 60 years old) or range of ages (e.g. 18 to 30 year olds, over 60s). It can also occur when people are disadvantaged because they are considered to belong to a more general grouping for example ‘young people’ or ‘the middle aged’. Age is the only ‘protected characteristic’ which allows employers to justify direct discrimination. Different National Minimum Wage rates and higher redundancy pay for older workers are allowed if they mirror the government scheme. The abolition of the default retirement age of 65 from April 2011 means that employers are no longer able to treat people nearing 65 differently in relation to recruitment and retirement. Some retirement ages may still be justifiable but the employer will have to be very clear as to why this is necessary.
Different treatment based on age is not considered to be unlawful discrimination if the employer can show the treatment is ‘a proportionate means of achieving a legitimate aim’.
Disability A person has a disability if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on that person's ability to carry out 9
normal day-to-day activities. Progressive illnesses including cancer, HIV/AIDS and MS and facial disfigurement also count as disabilities. Equality law allows employers to treat a disabled person more favourably than a non-disabled person. This recognises that disabled people face a lot of barriers participating in work and other activities. For more information about disability discrimination and whether the law applies to your situation see PERS leaflet No 13 Disability Discrimination. The Disability Information Advice Line (DIAL) provides free information and advice on the whole range of disability issues. Contact the national DIAL office for details of a DIAL branch in your area on 0808 800 3333 (phone and textphone) or see www.scope.org.uk/support/disabled-people/local-advice PERS can offer free advice to disabled employers and employees in Yorkshire. This includes those employing their own carers (PAs).
Gender reassignment The law protects transsexual people if they are proposing to undergo, undergoing or have completed a process for the purpose of changing their gender. Protection has been extended so that people no longer have to be ‘under medical supervision’ to be protected by the law. A specialist advice service on transgender law is offered by Press for Change, see www.pfc.org.uk/index.html with a helpline available on 08448 708 165 (9:30am to 5pm, Thursdays guaranteed answer, Mon to Weds 10am to 4.30pm when volunteers are available).
Marriage and civil partnership The law protects people who are married or in a civil partnership. Single people are not protected. Civil partners must be treated the same as married couples on a wide range of matters. For marriage and civil partnership, there is no protection from discrimination by association or perception or from harassment. However, harassment related to civil partnership would probably amount to harassment related to sexual orientation.
Pregnancy and maternity Women are protected while pregnant (if their employer knows) and until the end of their maternity leave, which can be up to a year. For pregnancy and maternity, there is no express protection from discrimination by association or perception, indirect discrimination or harassment. However, in many situations a worker may be able to demonstrate that they have been treated less favourably because of sex discrimination.
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Race The protected characteristic of race refers to a person who belongs to a group of people defined by reference to their race, colour, nationality (including citizenship) ethnic or national origins. The protected characteristic of race does not currently cover caste discrimination although it is possible that the law may be amended in the future. Immigration and Asylum Act 1996 Section 8 of this Act requires employers to check that all prospective employees are allowed to work in the UK. You have an automatic right to work here if you are a British, Irish or Commonwealth citizen with right of abode in the UK, or a citizen of any EEA (European Economic Area) country or Switzerland. Nationals of states that recently joined the European Union no longer may have to register with, or apply for permission from, the Border and Immigration Agency before starting to work in UK. Employers must ask to see documents such as a current passport or a birth certificate to establish your right to work. All applicants have to prove their right to work in the UK and produce supporting documentation. The Act usually applies only to new employees; however, in certain circumstances a check will be made every 12 months, e.g. employees providing proof of their right to work in UK with a valid work permit. If you are the only person asked to prove your right to work in the UK and you think it is because of your race, colour or ethnic background, then you could claim direct race discrimination.
Religion and belief ‘Religion’ includes any religion which has a clear structure and belief system. Protection extends to those who do not follow a certain religion or have no religion at all. Denominations within a particular religion are also protected. ‘Belief’ means any religious or philosophical belief or lack of such belief. To be protected a belief should generally affect the way a person lives their life and the choices they make in a substantial way. So for example humanism, atheism or agnosticism may be included whereas things such as fanatical support of a sporting team would not be protected as that is not akin to a religion or similar philosophical belief. Political party allegiance/political conviction is now protected too.
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Sex
Men and women are protected. People are also protected from sex discrimination relating to their pay and other terms and conditions. This used to be covered by the Equal Pay Act 1970 and is now covered in a separate part of the Equality Act. See PERS leaflet Number 7 Equal Pay for Work of Equal Value for more information about this.
Sexual orientation This protected characteristic includes sexual attraction towards: people of the same sex (lesbians and gay men) people of the opposite sex (heterosexual) people of both sexes (bisexual)
Examples of discrimination Direct discrimination Joy, who is an African woman, applied for a job in person at a hotel and was told the job had been taken. When she phoned later she was told it was still available. This maybe direct discrimination on grounds of race. Hannah was selected for redundancy because she had a young child and her employer thought she would be unable to make overnight trips on company business. None of her male colleagues with young children were selected for redundancy. This is direct discrimination on grounds of sex. Jas is refused a job because she is pregnant. This is pregnancy and maternity discrimination. Frankie is employed as a manager in a day centre as a man. When she tells her boss that she is intending to undergo gender reassignment she is dismissed. This is direct discrimination on grounds of gender reassignment. Andrew attends an oncology appointment and is subsequently dismissed by his employer who thinks he has cancer and will need a lot of time off. This may not be the case and the employer’s assumption is unlawful. This is discrimination by perception. Yousef is dismissed for taking time off to look after his son who has Aspergers Syndrome. This may be discrimination by association with a disabled person. 12
Indirect discrimination
A nursery requires job applicants to have 10 years’ experience of working with children. This disadvantages younger people. This is indirect discrimination unless it can be shown that it is ‘a proportionate means of achieving a legitimate aim’. A large department store insists that its female workers wear a skirt and overall, not trousers. This requirement discriminates indirectly against women in the local Pakistani community, who are mostly Muslim and cannot wear this uniform as they wear traditional outfits. An employer has a policy that all medical and dental treatment must be done outside of working hours or in the employee’s own time. This requirement indirectly discriminates against some disabled people who need to attend regular appointments because of an impairment. A sales company specifies that all staff must have no dependents and are required to make overnight stays on a regular basis. It is more likely that single people will be able to comply with this requirement than those who are married or in civil partnerships.
Harassment
Barry is a Rastafarian. On a number of occasions his manager has suggested to him that he should ‘get his hair cut’ and ‘smarten himself up’. He frequently speaks to him in a way that is dismissive. Barry may be experiencing harassment related to his religion. Jim’s colleagues know that his son is gay and often tell jokes about gay people. Jim can complain of harassment on grounds of sexual orientation, even though it is not his own sexuality that is the butt of the jokes, because of his association with his gay son. Amy works in a restaurant where other members of staff frequently use racist language and talk about customers in a derogatory way. She could claim harassment if the language also causes an intimidating, hostile, degrading, humiliating or offensive environment for her.
Third party harassment
The caretaker in the building where Amina’s company is based tells sexist jokes whenever he comes to do a job. She finds this uncomfortable and has told Mandy her manager. Mandy says it is best to ignore him as he doesn’t come in very often. If Mandy doesn’t take action to prevent this happening the next time he comes in 13
Amina could claim unlawful discrimination as her employer has failed to protect her from harassment as this is related to her work situation. Clare works in a day centre. On several occasions clients using the centre have made homophobic remarks and offensive comments to her. She has reported this to her manager a number of times but no action has been taken. Clare is suffering harassment related to sexual orientation.
Victimisation John is no longer offered opportunities for overtime after he complains about harassment being suffered by Manjit. Angela has given evidence to an Employment Tribunal for a colleague who has brought a case under sex discrimination legislation. Her manager sees her as a ‘troublemaker’, so she is not promoted even though she has the necessary skills and experience.
Justifiable age discrimination
A building company has a policy of not employing under-18s on its more hazardous building sites. The aim behind this policy is to protect young people from health and safety risks associated with their lack of experience and less developed physical strength. This aim is supported by accident statistics for younger workers on building sites and is likely to be a legitimate one. Imposing an age threshold of 18 would probably be a proportionate means of achieving the aim if this is supported by the evidence. Had the threshold been set at 25, the proportionality test would not necessarily have been met.
Applying an occupational requirement
A health project wants to encourage older people from the Somali community to make more use of health services. They want to recruit a person of Somali origin for the post because it involves visiting elderly people in their homes and it is necessary for the post-holder to have a good knowledge of the culture and language of the potential clients. There is not a Somali worker already in post who could take on the new duties. They may be able to use the occupational requirement exception to recruit a health worker of Somali origin. A women's refuge which lawfully provides services to women only , can apply a requirement for all members of its staff to be women.
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Notes
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Employment advice line 01924 428030 Monday and Friday 10am to 1pm Tuesday, Wednesday and Thursday 10am to 4pm Evening session Tuesday 5.30pm to 7.30pm Our service is currently free to some disabled people in Yorkshire and Humber. Reasonable rates apply for other workers, organisations and employers. Visit our website for details.
www.pers.org.uk Pay & Employment Rights Service is a registered charity providing advice, information, training and consultancy on pay and employment rights. We depend on grant funding and donations to enable us to offer our free services and publications. If you would like to donate, contact us or text PERS36 and the amount you wish to give to 70070. Thank you.
The information in this leaflet was accurate at the time of going to press. It is intended as a guide and is not a full statement of the law. Seek advice before taking action. You can feedback about our service by clicking on the link on our website. Š 2015 Pay & Employment Rights Service (Yorkshire) Ltd Company No 2201619 Registered charity 1097401 Suite 35, Batley Business Park, Technology Drive, Batley. Wf17 6ER 16