Legislation protects people in work from being subjected to ‘prohibited conduct’ to do with a ‘protected characteristic’.

Generally, the intention of the alleged perpetrator is irrelevant to whether or not prohibited conduct has occurred.  

Protected characteristics

These are:

◉ Sex – being male or female.

◉ Sexual Orientation – whether towards others of the same sex, the opposite sex or both sexes.

◉ Marriage or civil partnership (but not being single).

◉ Gender reassignment/transsexuality – the person is undergoing, has undergone or is proposing to undergo all or part of a process to reassign sex by changing physiological or other attributes of sex (Note: the process does not have to be a 'medical' one).

◉ Race – including colour, nationality, and ethnic or national origins.  

◉ Religion or belief – any religion or 'religious or philosophical belief' or the lack of one.

◉ Disability – a physical or mental impairment that has a substantial and long-term (having lasted or being likely to last for 12 months or the rest of life) adverse effect on the ability to carry out normal day-to-day activities.  Also note:

○  the effect of impairment must be judged without regard to medical treatment or other corrective aids or measures

○  a progressive condition that is likely ultimately to have the required effect is treated as a disability even though it has not yet reached that stage

○  recurring conditions that have the required effect are treated as continuing to have that effect during periods of remission

○  severe involuntary disfigurements, blindness, partial sightedness, cancer, HIV and multiple sclerosis are automatically treated as disabilities

○  a disability that has now ceased can still be a protected characteristic.

◉ Age – being either of a particular age or within a particular range of ages.

◉ Pregnancy and maternity – the protected period between the start of pregnancy and, for an employee, the expiry of the AML or, if earlier, return to work after pregnancy or, for a non-employee, the expiry of two weeks after the end of pregnancy.

General forms of prohibited conduct

The legislation describes various types of conduct (an act or omission) by reference to a protected characteristic (see above) which, when occurring in the context of work (see below), will be unlawful.  The forms of prohibited behaviour or conduct are:

Direct discrimination

Because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Note: 

(1) The wording of the definition allows it to cover situations in which B does not have the protected characteristic but A's treatment of B is either (i) because A perceives B to have it or (ii) because B associates with others (except spouses or civil partners and, possibly, those who are pregnant) who do have it.

(2) If the protected characteristic is age, there is a defence of justification (if the conduct in question is a 'proportionate means of achieving a legitimate aim').

(3) If the protected characteristic is disability and B is not disabled, there is no direct discrimination simply because A treats disabled people more favourably than B.

Indirect discrimination

There are three necessary elements:

◉ A applies a ‘provision, criterion or practice’ which puts or would put those with whom B shares a protected characteristic at a particular disadvantage compared with those with whom B does not share it 

◉ it puts or would put B at that disadvantage, and 

◉ A cannot justify it as a proportionate means of achieving a legitimate aim.

Note: the protected characteristic of pregnancy and maternity (see above) is not specifically within the scope of indirect discrimination, although the protected characteristic of sex is, and would cover most pregnancy/maternity anyway.

Harassment

There are three forms:

◉ A engages in unwanted conduct to do with sex, sexual orientation, gender reassignment, race, religion or belief, disability or age and the conduct has the purpose or effect of violating B's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B

◉ A engages in unwanted conduct of a sexual nature and the conduct has the same effect or purpose

◉ A or another engages in unwanted conduct to do with sex or gender reassignment or of a sexual nature that has the same effect or purpose and then, because B rejects that conduct, A treats B less favourably than would otherwise have been the case.

Note: In all three forms of harassment, the effect of the conduct must be judged with reference to B's perception, to the other circumstances, and to whether it is reasonable for the conduct to have that effect.

Victimisation

A subjects B to a detriment because B has done, or because A believes B has done or may do, one of the following:

◉ bringing legal proceedings about a protected characteristic

◉ giving evidence or information in connection with such proceedings

◉ making an allegation that someone has broken the law on equality (including equal pay).

Note: there is no need for a comparator here.

Instructing, causing or inducing discrimination or other prohibited conduct

A instructs, causes, induces or attempts to cause or induce B to undertake prohibited conduct affecting C.

Aiding discrimination or other prohibited conduct

A knowingly helps B to discriminate or undertake prohibited conduct (unless A reasonably relies on a statement by B that the conduct for which help is given is not unlawful).

Work-based situations in which discrimination will normally be unlawful

'Employment'

Prohibited conduct (particularly discrimination and victimisation) will generally be unlawful, so, as applicable, an employee, worker (operating under a contract to do work personally) or job applicant will be allowed to take action against the ‘employer’ if such conduct exists in:

◉ the operation of the arrangements for selection

◉ a refusal or deliberate omission to offer employment

◉ the terms of employment offered

◉ the terms operated/applied in employment 

◉ access to opportunities for promotion, transfer or training; or to benefits, facilities or services or 

◉ dismissal or other detriment.

Note:

(1) Direct discrimination that occurs in selection, recruitment, promotion/transfer/training or dismissal will not be unlawful if having a particular protected characteristic is an 'occupational requirement' for a job and the exercise of that requirement is justified as being a proportionate means of achieving a legitimate aim.  

(2) Acts of discrimination or harassment that occur after employment has ended are unlawful if they arise out of and are closely connected with the previous employment.

'Contract (or agency) workers' 

Those hired out by their employer to a host business for which they do work (see also Chapter 2) are protected against harassment by the host.  They are also protected against discrimination and victimisation by the host:

◉ in the terms on which the host allows the workers to do the work

◉ in not allowing the worker to do or to continue doing the work

◉ in access to opportunities for receiving a benefit, facility or service

◉ in any other detriment.

Issues and exemptions linked to particular protected characteristics

Sex

Exemptions are:

◉ discrimination, based on reasonable reliance on reputable actuarial or other data, in an annuity, life insurance policy, accident insurance policy or similar thing involving the assessment of risk

◉ discrimination on matters covered separately by the equal pay provisions (see below)

◉ discrimination that is necessary to comply with statutory provisions to protect women against risks specific to them, such as pregnancy and maternity.

Marriage/civil partnership

◉ Exempted is discrimination based on reasonable reliance on reputable actuarial or other data, in an annuity, life insurance policy, accident insurance policy or similar thing involving the assessment of risk.

Gender reassignment

◉ A specific form of unlawful discrimination applies here if, on B's absence because of gender reassignment (perhaps for a medical procedure or counselling), A treats B less favourably than A would if B's absence: 

○  were because of sickness or injury; or

○  were for some other reason and it was not reasonable for B to be treated less favourably.

◉ Exempted is discrimination based on reasonable reliance on reputable actuarial or other data, in an annuity, life insurance policy, accident insurance policy or similar thing involving the assessment of risk.

Religion or belief 

Your belief/my belief

To be a 'protected characteristic', a ‘belief’ does not have to be religious in nature or foundation.  It must be:

◉ genuinely held

◉ a belief, not an opinion or viewpoint

◉ a belief about a weighty and substantial aspect of human life and behaviour

◉ able to attain a certain cogency, seriousness, cohesion and importance

◉ worthy of respect in a democratic society; not incompatible with human dignity; and not in conflict with the fundamental rights of others.

So, for example, it has been held that a claimant’s belief that mankind is heading towards catastrophic climate change and that people should live their lives in a way that would reduce or avoid that catastrophe fell within the limits of what might constitute a philosophical belief and qualify for protection. 

There is an exemption for anything necessarily done pursuant to a requirement of legislation or to a requirement or condition imposed under legislation.

Disability

◉ If B is not disabled, there is no direct discrimination (see above) simply because A treats disabled people more favourably.

◉ Discrimination arising from disability.

There is an additional type of prohibited conduct where A treats B unfavourably because of something ‘arising in consequence of’ B’s disability and A cannot justify the treatment (as a proportionate means of achieving a legitimate aim).

Note: 

(1) Under this type of prohibited conduct, there is no need for a comparator of any type – so unfavourable/detrimental treatment (such as a warning or dismissal) of B for absence in consequence of a disability will be discrimination by A (unless it can be justified).

(2) There can be no discrimination here unless A knows or ought reasonably to know of B's disability.

◉ ‘Reasonable adjustments’

An employer has a duty, applying to all work-related situations (see above), to make reasonable adjustments if:

○  a 'provision, criterion or practice'

○  a physical feature of premises, or 

○  the absence of an auxiliary aid 

places a disabled person at a substantial disadvantage to a person who is not disabled.

The duty does not arise unless the employer knows or ought reasonably to know that there is a person with a specific disability.

The duty is to take such steps as are reasonable to avoid the disadvantage or, in the third case above, to provide the auxiliary aid.

Steps might be alterations to premises, re-allocation of duties, altering hours, permitting absence during working hours, providing or modifying equipment, changing testing or assessment procedures, or making a reader or interpreter available. 

Factors determining whether an employer should make an adjustment include: its effectiveness, practicability and cost.

Note:

(1) If premises are occupied by the employer under a tenancy that prohibits or restricts an alteration by the employer that would be a reasonable adjustment, the tenancy is deemed altered to stipulate:

◉ that the employer is entitled to make the alteration with written consent and is obliged to apply in writing for that consent and

◉ that the landlord will not withhold consent unreasonably (but may make it subject to reasonable conditions)

◉ if the employer does not apply for the landlord's consent, that anything in the tenancy preventing alteration will be disregarded in deciding whether the employer has complied with the duty on reasonable adjustments.

(2) If premises are occupied by the employer subject to a mortgage, charge or covenant that requires the consent of another to make an alteration that would be a reasonable adjustment, the absence of that consent will be a defence to breach of the duty provided that the employer has requested consent.

Compliance with the duty to make reasonable adjustments may entail giving a suitably qualified, disabled person priority over a better-qualified, non-disabled person (in essence, a form of 'positive discrimination').

Failure to comply with the duty on reasonable adjustments is unlawful discrimination.

◉ Pre-offer enquiries about health

A should not ask about the health of B, a job applicant, before offering work to B or including B on a shortlist for selection, unless it is necessary:

○  to establish whether B will be able to undergo an assessment or whether A will be subject to a duty to make reasonable adjustments (see above) for B to undergo an assessment

○  to establish whether B will be able to perform a function 'intrinsic to' the work concerned

○  to monitor diversity in job applicants

○  to take positive action

○  (if the work requires people with a particular disability), to establish whether B has that disability.

Contravention is enforceable by the Equality and Human Rights Commission (EHRC) (see below).

Also, if A acts in reliance on the information given about B's health, there will be a presumption of direct discrimination (see above) in any such claim brought by B.  So, provided that B is a disabled person, the burden of proof will be on A to show that B was not rejected because of that.

Note: This provision does not, as such, prohibit an offer of employment subject to the receipt of a satisfactory medical reference or the completion of a satisfactory medical examination.  However, if a disability were revealed by such a reference or examination, any rejection, withdrawal of the offer or (if employment had commenced) termination in reliance on that information would usually be direct discrimination.  

◉ Exempted from disability discrimination generally is anything necessarily done pursuant to a requirement of legislation or to a requirement or condition imposed under legislation.

Age

◉ As mentioned earlier, there is, uniquely within direct discrimination for the protected characteristics, a defence of justification ('a proportionate means of achieving a legitimate aim').

◉ Exceptions from unlawful discrimination are:

○  the quantification of benefits (such as paid holidays) by reference to a period of service of up to five years.  Thereafter, any continuing lower benefit must be justified as fulfilling a ‘business need’

○  the provision of enhanced redundancy payments, provided that the employer uses the statutory redundancy payment as the initial basis of calculation

○  anything necessarily done pursuant to a requirement of legislation

○  the provision of life assurance until normal retirement age to employees taking early retirement on grounds of ill-health, or of facilities or arrangements for the care of children of a particular age group

○  the operation of certain age-based rules, criteria or decisions on pensions.

Pregnancy/maternity

◉ As indicated earlier, a claim of indirect discrimination involving this protected characteristic cannot be made.

◉ There is a specific additional protection against discrimination by A against B if:

○  in the protected period of B's pregnancy (see earlier), A treats her unfavourably because of the pregnancy or illness resulting from it; or

○  A treats her unfavourably because she is on compulsory maternity leave.

It is worth noting that:

○  because of the wording, there is no need for a male or non-pregnant comparator but there is arguably no scope for an associative pregnancy/maternity discrimination claim (which instead would have to be brought under the general direct discrimination definition – see above)

○  if pregnancy-related or maternity-related treatment occurred outside the times specified, a claim would have to be brought under the general direct discrimination definition (see above).

◉ Exceptions are:

○ discrimination, based on reasonable reliance on reputable actuarial or other data, in an annuity, life insurance policy, accident insurance policy or similar thing involving the assessment of risk

○  discrimination that is necessary to comply with statutory provisions to protect women against risks specific to them, such as pregnancy and maternity

○  removing during maternity leave any benefit of non-contractual pay (except any bonus for times when the woman is on compulsory maternity leave and any bonus for performance during a time she was at work).

An employer will be (vicariously) liable for prohibited conduct by its employees or agents, unless it is able successfully to rely on the defence of having taken reasonably practicable steps to prevent the unlawful act (for example, by issuing policies on, or providing training in, diversity).

The 'guilty' employees or agents can be personally liable, whether or not the employer has relied on its defence and whether or not any such reliance has been successful.  There is no requirement here (as there generally is when discrimination is aided – see above) that the employee or agent acted knowingly.  However, the employee or agent can still escape liability if it is shown that the prohibited conduct was undertaken in reasonable reliance on a statement by the employer that the act concerned was not unlawful.

Positive action

There is protection against possible discrimination claims for employers who take proportionate measures to increase job applications from those with a specific protected characteristic that is under-represented or to address through training and advice disadvantages experienced by a specific group.

Public sector equality duty

There is a requirement for a public authority to have due regard to the need to eliminate prohibited conduct, advance equality of opportunity and foster good relations between different groups.

In advancing equality of opportunity, a public authority should have particular regard to removing or minimising disadvantages that are connected to a particular protected characteristic and to taking steps to meet the unique needs of those with a particular protected characteristic.

Enforcement is only by way of judicial review through interested people or by EHRC (see below).  

Code of Practice

See the ‘Employment’ code of practice, issued by EHRC.  Its provisions can be taken into account by an employment tribunal (see below).

The Equality and Human Rights Commission

EHRC performs other enforcement and educational functions.  It has the powers to investigate, to obtain information, to issue notices of unlawful acts (perhaps with an action plan), to apply for an injunction against persistent offenders, to provide legal assistance and to apply for a declaration of rights.

Application to the employment tribunal

This must be made within three months of the act complained of, but a tribunal may admit an ‘out of time’ case, if it considers it ‘just and equitable’ to do so.  Conciliation from Acas is always available.  The tribunal has three possible remedies: 

◉ a declaration: a statement of the rights of the claimant and in what respect the employer or any employee has acted unlawfully

◉ compensation: an uncapped amount for any financial losses (including future loss) and for injury to feelings

◉ recommendations: to benefit the employee and lessen the effect of the discrimination.  

Injured feelings

An employment tribunal can award compensation for ‘injury to feelings’ in discrimination cases.  The so-called ‘Vento guidelines’ were first established in 2002 and have since been updated to take account of inflation.  There are three bands, most recently:

◉ £26,300 - £44,000 for the most serious cases, such as a lengthy campaign of harassment. An award of more than £44,000 would be exceptional

◉ £8,800 - £26,300 for serious cases that do not merit the highest band

◉ £900 - £8,800 for less serious cases, such as an isolated act of discrimination. The guidelines say awards of less than £800 should be avoided.

In determining fair and reasonable compensation, tribunals are advised to have regard to the ‘overall magnitude of the sum total of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage’.

Coverage and nature of protection

A part-time worker is one with hours of work that are less than those of a full-time worker employed by the same employer, doing the same work and having the same type of contract.  (So, strictly, someone who works 35 hours a week rather than the full 37.5 normally required would be a part-timer.)

Part-time workers have the right not to be treated less favourably than a ‘comparable’ full-time worker, unless the employer can justify that treatment.  This covers terms and conditions of employment (usually ‘pro rata’ equality is required) or any other detriment.

Taking action

Employees have the right to request from the employer a written explanation if they believe they are being treated less favourably than a comparable full-time employee.  The employer must respond within 21 days.  Deliberate and unreasonable failure to reply, or evasive or equivocal answers, can lead to the inference of discrimination.

The remedy is a complaint of discrimination to the employment tribunal, which may make a declaration and/or an award of compensation.  There is also protection against victimisation for relying on these rights.

Coverage and basic nature of the protection 

A ‘fixed-term contract’ is one that terminates on the expiry of a period, on the completion of a particular task or on the occurrence or non-occurrence of a specified event.  A contract with one of these features remains a ‘fixed-term contract’ even if it contains a provision for earlier termination by the giving of notice.  Some legislation refers to the same range of contracts as ‘limited-term contracts’.

Employees on fixed-term contracts (‘fixed-term employees’) should not be treated less favourably than comparable, ‘permanent’ employees on the grounds that they are fixed-term employees, unless this is objectively justified.  

Treatment of fixed-term employees 

Fixed-term employees can compare themselves with employees of the same employer who are not on fixed-term contracts and who do the same or broadly similar work.  If there is no comparable ‘permanent’ employee in the establishment, a comparison can be made with a similar permanent employee working for the employer in a different establishment.  

Treatment may be assessed against either:

◉ any one of the fixed-term employee’s terms and conditions of employment, which should be not less favourable than the comparable ‘permanent’ employee’s, or 

◉ the fixed-term employee’s overall package of terms and conditions of employment, which should not be less favourable than that of the comparable ‘permanent’ employee.  

What if fixed-term employees feel they are being treated unfairly?

Employees have the right to request from the employer a written explanation if they believe they are being treated less favourably than a comparable ‘permanent’ employee.  The employer must respond within 21 days.  Deliberate and unreasonable failure to reply, or evasive or equivocal answers, can lead to the inference of discrimination.

Limitation on successive contracts

The use of successive fixed-term contracts is limited to four years’ service, unless the use of further fixed-term contracts is justified on objective grounds.  So, if there is no such justification, a fixed-term contract renewed after the four-year period of service will be treated as a contract for an indefinite period.

Waiver clauses

Any clause that still exists in a fixed-term contract that purports to deny or waive the right to claim unfair dismissal and/or to claim a statutory redundancy payment on the expiry of that contract without renewal (which is a dismissal) is now invalid.

Access to permanent work

Fixed-term employees should be given information on permanent vacancies in the organisation.  

Referral to the employment tribunal

The remedy is a complaint of discrimination to the employment tribunal for a declaration and/or compensation.  There is also protection against victimisation for relying on rights.

'Spent' convictions

After a period of good behaviour (unless stated otherwise, after the end of the sentence), a conviction is 'spent' – that is, treated as if it had never occurred.  Rehabilitation periods (with one separately bracketed for those aged under 18 when found guilty) are:

Job applicants are not obliged to disclose spent convictions, the intention being that these should not be used as grounds for discrimination in recruitment, during employment, or as reason for dismissal. 

Note: it is a criminal offence to require a job applicant or employee to use a subject access request to get a copy of their own criminal record – which will include spent convictions – in connection with their recruitment or continued employment (a practice known as enforced subject access). 

However, there is no specific individual protection or remedy for breach of the general principle that no reliance should be placed upon spent convictions, except when someone with the requisite length of service is dismissed and can claim unfair dismissal.  

Exceptions

Among the jobs where applicants must disclose all convictions, regardless of whether they are spent or not, are medical practitioner, vet, nurse, lawyer, accountant, police officer, traffic warden, teacher, social worker and youth worker; but not security worker.