Employment Law Advocates

What is unlawful direct discrimination?

An employer directly discriminates against an employee (including potential or former employees) when the employer treats the employee less favourably because of a reason related to the employee’s sex, sexual orientation, race, religious belief, age or disability.

For example, a case of direct race discrimination could be where an employer declines to offer a pay rise to an employee because the employee is black.

Most cases are not so straightforward as the example above. Often, an employee complains of less favourable treatment, but there may be limited evidence that the treatment was because of his/her race, sex, etc. The employer may not admit to the true reason; even perhaps the employer may not be discriminating deliberately. If the employee can show to a Tribunal that there is a sufficient minimum of evidence that the treatment was because of his/her race, sex, etc., then it is the employer who would have to explain the treatment to the Tribunal. If the employer does not satisfy the Tribunal that their explanation is truthful, then the Tribunal can find that the real explanation for the treatment is that it was an act of discrimination.

What is harassment?

Harassment occurs where an employer or employee of an employer engages in unwanted behavior because of the employee’s race, disability, sex etc that was intended or had the effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

So for example, where a disabled employee is subjected to abusive language because of his disability, then, assuming s/he is offended, it is likely that he has been harassed.  

What is sexual harassment? 

Sexual harassment occurs where (usually) a man engages in unwanted conduct of a sexual nature that was intended or had the effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.  

Where for example a male employee as asks a female employee unwanted questions of a sexual nature and she is offended by those questions, then it is likely that he has sexually harassed her.

What is unlawful indirect discrimination?

Indirect discrimination occurs when an employer imposes a condition or requirement on everyone that has a worse or stronger impact on a protected group (e.g., women, members of ethnic or religious minorities, or non-heterosexuals) than on another comparable group.

For example, a decision to stop all employees from working flexible hours could be a case of indirect sex discrimination. The decision could have a greater impact on women than on men, because a greater proportion of the female employees could have childcare commitments. In such a case, a female employee raising a complaint against the employer would have to show that she could not comply with the decision, and that this would cause her disadvantage (e.g., financial loss).

Unlike most categories of direct discrimination, indirect discrimination can be defended by the employer on the grounds that it is justified. The employer would have to prove that a particular condition is absolutely necessary for the employer because of a compelling business reason.

What does ‘disabled’ mean here?

For the purposes of employment law, an employee would have to prove to the Tribunal that they suffer from a disability covered by the relevant laws.

In this context: 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.

The effect counts as “long-term” if it has lasted for over 12 months, or if it is likely to last for over 12 months.

So, if the employee’s back problems cause them difficulty in their everyday life, they may qualify as disabled.

Employers’ duty to make reasonable adjustments to help disabled employees

Employers have a legal duty to make reasonable adjustments to their workplace arrangements or terms of employment to prevent disabled employees being at a disadvantage (as a result of their disability).

This may mean that an employer would be obliged to grant an exception to a disabled employee on rules regarding, for example - working hours, which normally apply to all their employees. Or it could mean that physical adjustments in the workplace are needed. The point is that the employer is obliged to discriminate positively in favour of disabled people, but only as far as it is reasonable.

What is reasonable will vary from employer to employer, and will depend on various factors including the extent of the employer’s resources.