Employment Discrimination Legal Advice | Employment Law Advocates

Discrimination

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 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.