AN INTRODUCTION TO DISCRIMINATION IN THE WORKPLACEEvery company wants the best person for the job. However, unequal treatment, prejudice or harassment discredits many businesses every year and the costs are high in both fines, awards legal and fees. A director, owner or manager may be held responsible for any discriminatory action by it's employees. It is unlawful to discriminate on the grounds of someone's sex, sexual orientation, status as a married person, race, colour, nationality, ethnic origin, religion, beliefs or because of a disability, pregnancy or childbirth, or subsequent maternity leave or because they are a member or non-member of a trade union. It is unlawful to discriminate against part-time workers. From 5 December 2005, laws have been extended to include people with certain illnesses effectively from the point of diagnosis. The restriction that mental illnesses must be "clinically well recognised" has also been removed from this date. Also from 5 December 2005, a person who is a civil partner in a registered civil partnership of a same-sex couple should not be treated less favourably than a married person in similar circumstances. If a civil partner is treated less favourably, they may be able to bring a claim for sexual orientation discrimination under the Sexual Orientation Regulations or a claim for sex discrimination. The law in Northern Ireland is more wide-ranging on matters of discrimination. This guide tells you what you must know about the law on discrimination and advises on best practice. AGE DISCRIMINATION The Employment Equality (Age) Regulations Act was introduced on 1st October 2006, making it unlawful to discriminate against individuals on the basis of age in recruitment and employment. Helpful Hints - Job Descriptions
THE EMPLOYMENT AGENCIES ACT 2004 The following are major changes to the Regulations which came into force in Great Britain on 6th April 2004. Restrictions
on charging introduction or 'transfer' fees Firstly you may not charge an introduction fee for a temporary worker unless you give the client the option of paying the fee or taking the worker for an extended period of hire. The amount of the fee and the period of hire are a matter for negotiation and are without restriction. Secondly, you may charge a client an agreed sum of money if they take on a temporary worker either on a permanent basis or through another agency within a period of eight weeks after the end of an assignment provided the client has the option of keeping the worker on a temporary basis for an agreed period of time instead. Again, there are no restrictions on the length of either the initial period of hire or the extended period and no restriction on the amount of the fee. You may also charge a client who introduces a worker to another person, who may be another agency, who then employs that worker within eight weeks of the end of an assignment provided they have been given the option of an extended hire period and chose not to exercise this. (If it is the first assignment for that worker with that client, the period during which you can charge a fee is the longer period of either 14 weeks from the start of that assignment or eight weeks after its end.) Limited Company
Contractors If a contractor submits to the protection of the Regulations you will not be able to restrict him/her from taking up work directly with a hirer to whom he/she has been supplied by you. However, this will not stop you charging the hirer a 'transfer fee' (see above). Paying Temporary
Workers Agreement
of Terms Information
from and to the Hirer and Work-Seeker There Regulations also detail the information that you must give orally or otherwise, when you introduce a worker or offer work to a work-seeker. Unsuitable
Candidates THE EMPLOYMENT AGENCIES ACT 2004 The following are major changes to the Regulations which came into force in Great Britain on 6th April 2004. Restrictions
on charging introduction or 'transfer' fees Firstly you may not charge an introduction fee for a temporary worker unless you give the client the option of paying the fee or taking the worker for an extended period of hire. The amount of the fee and the period of hire are a matter for negotiation and are without restriction. Secondly, you may charge a client an agreed sum of money if they take on a temporary worker either on a permanent basis or through another agency within a period of eight weeks after the end of an assignment provided the client has the option of keeping the worker on a temporary basis for an agreed period of time instead. Again, there are no restrictions on the length of either the initial period of hire or the extended period and no restriction on the amount of the fee. You may also charge a client who introduces a worker to another person, who may be another agency, who then employs that worker within eight weeks of the end of an assignment provided they have been given the option of an extended hire period and chose not to exercise this. (If it is the first assignment for that worker with that client, the period during which you can charge a fee is the longer period of either 14 weeks from the start of that assignment or eight weeks after its end.) Limited Company
Contractors If a contractor submits to the protection of the Regulations you will not be able to restrict him/her from taking up work directly with a hirer to whom he/she has been supplied by you. However, this will not stop you charging the hirer a 'transfer fee' (see above). Paying Temporary
Workers Agreement
of Terms Information
from and to the Hirer and Work-Seeker There Regulations also detail the information that you must give orally or otherwise, when you introduce a worker or offer work to a work-seeker. Unsuitable
Candidates DATES OF LEGISLATION Age
Legislation October 2006 Equal
Pay Act 1970 Sex
Discrimination Act 1975 Race
Relations Act 1976 Disability
Discrimination Act 1995 The
Human Rights Act 1998 DISCRIMINATION AGAINST DISABLED PEOPLESince 1 October 2004, it has been unlawful for any employer, regardless of size, with the exception of the armed forces, to directly discriminate against a disabled person because they are disabled. Also they must not discriminate against a disabled person for a reason related to their disability, unless this can be justified. What counts as a disability? The Disability Discrimination Act defines disability as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. This doesn't include drug or alcohol abuse or a tendency to start fires, steal or physically abuse others, amongst other exclusions. From 5 December 2005, the Disability Discrimination Act 2005 has widened this definition of disability, providing protection for people with cancer, HIV and multiple sclerosis, effectively from the point of diagnosis. The restriction that mental illness must be "clinically well-recognised" before it is judged to be a mental impairment has also been removed. Read about the Disability Discrimination Act 2005 on the Directgov website. What employers must not do An employer mustn't treat a disabled person less favourably than other members of staff. For instance, you shouldn't refuse to interview, employ, train or promote a disabled person, simply because of their disability. Since 1 October 2004, harassment on the grounds of disability has also been explicitly outlawed. What employers must do Employers have a duty to make reasonable adjustments to enable a disabled person to work or continue working. Reasonable adjustments often involve little or no cost to your business. To find out what you need to consider before making an adjustment for disabled employees see our guide on how to provide access and facilities for disabled people. Penalties for discrimination Where an employment tribunal finds that disability discrimination has occurred, penalties can be high, since there is no limit on compensation. There are no length-of-service or age requirements in bringing a claim and where the claimant is an employee, he or she does not need to have left your employment. However, the claim to an employment tribunal will generally have to be brought within three months of the alleged discriminatory act occurring. DIRECT AND IN-DIRECT DISCRIMINATION - DISCRIMINATION IN DAY-TO-DAY WORKING PRACTICESDirect discrimination is generally easily recognisable, where someone is denied employment because of race, gender, sexual orientation, disability, etc. Indirect discrimination, however, can be harder to detect and may often be unintentional. If a person feels they are discriminated against unlawfully, they may take a case to an employment tribunal. This could lead to heavy penalties for an employer and, in the absence of an appropriate explanation, employment tribunals are required to infer that discrimination has occurred. See the A-Z list of practical guidance on employment issues on the Acas website. It is also important to bear in mind that anti-discrimination legislation applies equally to part-time workers. It's against the law to discriminate against part-time workers because of their part-time status. Most
employers produce policies that set out the rules and procedures their
staff need to know. A policy statement may help employees to understand
what the employer expects of them, and their legal rights and obligations. Equal pay reviewsMany companies have instituted equal pay reviews which aim to ensure that all staff enjoy the same pay and conditions while doing similar types of work. The reviews can help avoid "glass ceiling" working cultures, where certain types of people don't get promoted above specific levels. These reviews can also help make sure that an equal-pay policy is working. Equal-pay reviews may be carried out by someone within the company trained to deal with equality issues or they may be conducted by an outside team of specialists. Access information which provides advice for employers on good, equal-pay practice on the Equal Opportunities Commission website. Positive actionIn the UK positive discrimination is unlawful but positive action is not. This means equality targets can be put in place as a way of eliminating historic imbalances in terms of gender, ethnicity, disability, sexual orientation and religion or belief DISCRIMINATION IN RECRUITMENT AND INDUCTION It is important to avoid discrimination in recruitment and induction processes. Remember - someone might be able to take you to an employment tribunal, even though they're not an employee, if they believe they weren't selected for a particular job for discriminatory reasons. The Code of Practice on Racial Equality in Employment that came into force 22 November 2005. It becomes statutory from 6 April 2006. This provides guidance on how to prevent unlawful racial discrimination in recruitment policies. Download guidance on achieving racial equality in employment from the Commission of Racial Equality website (PDF). Since 1 October 2004, the Disability Discrimination Act has included provisions outlawing job advertisements which imply that any candidate's success depends to any extent on him or her not having a disability, or which indicates a reluctance on the part of the employer to make reasonable adjustments. In addition, since 5 December 2005, third-party publishers, eg newspapers, are liable if they publish discriminatory advertisements. While it is rare to see advertisements specifying a particular race or gender, age discrimination is still common with phrases such as "young", "would suit someone who has just qualified" or "minimum of ten years' experience". This is likely to lessen when proposed anti-age discrimination legislation is enacted but it is good practice to take action on this now. See the page in this guide on age discrimination. In certain circumstances discrimination may be allowed if it is seen to be a genuine occupational qualification for the job in question. When interviewing people for a job there are certain questions you should not ask, either directly or indirectly, including whether a candidate is married, a partner in a same-sex civil partnership, or plans to have children. You must not attempt to elicit information about a person's sexual orientation or their religion. Read about the actions you should take to give equal treatment to civil partners in your policies, forms and other material on the ACAS website. Care should also be taken when asking about a disability. Whilst the Disability Discrimination Act does not prohibit an employer from seeking information about a disability, that information must not be used to discriminate against a disabled person. An employer should only ask such questions if they are relevant to the person's ability to do the job, after a reasonable adjustment, if necessary. This approach should be applied throughout meetings and induction. DISCRIMINATION ON THE GROUNDS OF RACE It's unlawful to discriminate against someone, either directly or indirectly, on the grounds of race, colour, nationality - including citizenship - or ethnic origins, under the Race Relations Act 1976. Racial harassment is defined as a form of discrimination. As with other forms of discrimination, it can be either direct or indirect on the grounds of race. Direct discrimination may include treating somebody less favourably on the grounds of their race, colour, ethnicity or national origin. Indirect discrimination can occur when an employer applies an apparently general rule that in practice disadvantages people of a particular race, colour, ethnicity or national origin and that cannot be justified. This form of discrimination applies to the way employees are recruited, trained, promoted and selected for dismissal on grounds of redundancy, or, after they have left, if an employer refuses to provide a reference because they have a discrimination claim against an employer. From 22 November 2005, a revised Code of Practice on Racial Equality in Employment became available. This is intended to help employers draw up an equal opportunities policy to prevent unlawful racial discrimination. The code will not place any legal duties on employers until 6 April 2006 when it becomes statutory, but it may be taken as evidence in legal proceedings. Download guidance on achieving racial equality in employment from the Commission for Racial Equality website (PDF). The penalties for race discrimination can be high, both for organisations and individuals, since there is no limit on compensation. There are no length-of-service or age requirements in bringing a claim and where the claimant is an employee, they do not need to have left their employment. DISCRIMINATION ON THE GROUNDS OF RELIGION OR BELIEF Discrimination against an employee or job candidate on the grounds of their religion or belief became unlawful from December 2003 under the Employment Equality (Religion or Belief) Regulations. The regulations apply to discrimination on grounds of religion, religious belief or similar philosophical belief. They cover discrimination on grounds of perceived as well as actual religion or belief and the religion or belief of someone with whom the person associates. As with other forms of discrimination, the new legislation recognises both direct and indirect discrimination on the grounds of religion or belief. Direct discrimination may occur in areas such as recruitment, selection, training, promotion, selection for redundancy or dismissal when someone is treated less favourably than another because of their actual or perceived religion, religious or philosophical beliefs. An example of this would be where an employee is dismissed on grounds of misconduct for taking leave for a religious occasion. Indirect discrimination occurs when an employer applies a provision, criterion or practice which disadvantages people of a particular religion or of particular religious or philosophical beliefs and which cannot be justified. The regulations also outlaw:
There are no length-of-service or age requirements in bringing a claim and where the claimant is an employee, they do not need to have left their employment. DISCRIMINATION ON THE GROUNDS OF SEXUAL ORIENTATION Discrimination against an employee or job candidate on the grounds of their sexual orientation became unlawful from December 2003. The Sexual Orientation Regulations apply to discrimination on grounds of orientation towards persons of the same sex (lesbians or gays), the opposite sex (heterosexuals) and the same and opposite sex (bisexuals). They cover discrimination on grounds of perceived as well as actual sexual orientation and the sexual orientation of someone with whom the person associates. As with other forms of discrimination, the legislation recognises both direct and indirect discrimination on the grounds of sexual orientation. From 5 December 2005, a person who is a civil partner in a registered civil partnership of a same-sex couple should not be treated less favourably than a married person in similar circumstances. If a civil partner is treated less favourably, they may be able to bring a claim for sexual orientation discrimination under the Sexual Orientation Regulations or a claim for sex discrimination. Download a guide on the rights of civil partners from the Women and Equality Unit website (PDF). Direct discrimination may occur in areas such as recruitment, selection, training, promotion, selection for redundancy or dismissal or in awarding employment-related benefits when someone is treated less favourably than another because they are - or are thought to be - lesbian, gay, bisexual or heterosexual. Indirect discrimination occurs when an employer applies a provision, criterion or practice which disadvantages people of a particular sexual orientation and which cannot be justified. From 5 December 2005, indirect discrimination could also occur where a civil partner is treated less favourably than a married employee on a range of employment rights and employee benefits including the right to:
The regulations also outlaw:
There are no length-of-service or age requirements in bringing a claim and where the claimant is an employee, they do not need to have left their employment. DISCRIMINATION OVER MEMBERSHIP OR NON-MEMBERSHIP OF UNIONS Employees may not be refused a job, dismissed, selected for redundancy or discriminated against, for:
Also, they cannot be dismissed or selected for redundancy for refusing to accept an unlawful incentive by an employer to give up any of these trade union rights, or give up their collective agreement rights. Many trade unions are recognised by an employer when it negotiates agreements on pay and other terms and conditions of employment. This is a process known as collective bargaining, but it is not compulsory for an employee to be a member of that or any other trade union. Any withholding of a job offer, dismissal, or selection for redundancy, for membership or non-membership of a trade union could lead to a claim at an employment tribunal. Employers could also face an employment tribunal claim for dismissing, electing for redundancy, or treating detrimentally an employee who takes part, or proposes to take part, in trade union activities or makes use of a trade union's services at an appropriate time. For these purposes, industrial action does not count as a trade union activity. An "appropriate time" may be, for instance, outside working hours, during an employee's lunch break or at a time when the employer has agreed that they may take part in trade union activities. SEX DISCRIMINATION Sex discrimination legislation applies to all workers, not just employees. As with other areas of discrimination, sex discrimination can be direct - treating somebody less favourably on the grounds of their sex - or indirect - applying an apparently general rule which in practice disadvantages one sex and which cannot be justified. It includes the way you recruit, train, promote and dismiss people. Former employees retain the right to bring action if they discover, after leaving, that they suffered discrimination. The penalties for sex discrimination can be high, both for organisations and individuals, since there is no limit on compensation. There are no length-of-service or age requirements in bringing a claim and claimants who are employees do not need to have left thier employment. From 1 October 2005, the law is explicit that less favourable treatment of women on the grounds of pregnancy or maternity leave counts as unlawful sex discrimination. Also from 1 October 2005, new regulations make sexual harassment - and harassment on the ground of sex - explicitly unlawful in employment or vocational training. Sexual harassment can include insensitive jokes, displays of sexually explicit material, sexual innuendos or lewd comments or gestures. It's unlawful to discriminate against a person on grounds that they have undergone, are undergoing or intend to undergo gender reassignment. It is also unlawful to treat a person undergoing gender reassignment less favourably than a person who is off sick for another reason and similar period. Since 4 April 2005, a person recognised under the Gender Recognition Act 2004 has the right not to be discriminated against as a person of their acquired gender. Pay and conditions As of 5 December 2005, employers will be required to treat married employees and civil partner employees in the same way. This means that any benefit such as private health care that is available to the spouse of an employee, should also be made available to an employee’s civil partner. Download a guide on the rights of same-sex partnerships from the Women and Equality Unit website (PDF). FREQUENTLY ASKED QUESTIONS FAQ - Dependent
upon the offence, you can dismiss an employee instantly. FAQ -
An employee cannot take us to an Employment Tribunal unless he has 12
months service. FAQ -
When an employee is off sick, he is not entitled to holidays. FAQ -
Part time workers are not entitled to the same holidays as a full time
worker. FAQ -
A formal verbal warning can be given without a disciplinary hearing. FAQ -
An employee can be dismissed without notice. FAQ -
In a disciplinary hearing, an employee is entitled to have his solicitor
present. FAQ -
An employee can be dismissed without being paid holiday pay in certain
circumstances. FAQ -
An employee does not have the right of appeal when dismissed for gross
misconduct FAQ -
An employee cannot be discriminated against because of his or her age. FAQ -
An employee cannot be unfairly dismissed within the first 12 months of
service. FAQ -
There is no limit on the amount an Employment Tribunal can award. FAQ -
There is a legal right to statutory/bank holidays. |