Leading on from our post about the types of discrimination under the Equality Act 2010 we’ll today have a look at what potentially constitutes discrimination and the evidence that one needs to show to prove one’s case.

There are a variety of categories of persons to whom an employer (in the broad sense of the term) has an obligation not to discriminate against. These are:

  1. Employees (and applicants for employment)
  2. Contract workers
  3. Partners (and applications for partnership)
  4. Members of Limited Liability Partnerships (and applications for membership)

There are other categories of special workers who qualify for anti-discrimination protection under the EA 2010 such as the police, the bar, office-holders and personal office holders but unfortunately for the sake of brevity those won’t be covered today.

    Employees and applicants for employment

    Employers have an obligation under the Equality Act 2010 (“EA 2010”) to applicants for employment not to

    • discriminate against applicants for employment (s.39) (as to the arrangements for deciding whom to offer employment; on the terms that employment is offered; or by not offering employment)
    • victimise applicants (s.39) (as to the arrangements for deciding whom to offer employment; on the terms that employment is offered; or by not offering employment)
    • harass applicants (s.40) (either themselves or a 3rd party)

    Harassment by a 3rd party: the employer must have known of incidences of harassment towards the applicant on at least 2 occasions by other employees, customers, clients etc. (potentially by separate persons) and failed to take such steps as reasonably practicable to prevent such harassment.

    The example that the EA 2010 gives is where:

    A shop assistant with a strong Nigerian accent tells her manager that she is upset and humiliated by a customer who regularly uses the shop and each time makes derogatory remarks about Africans in her hearing. If her manager does nothing to try to stop it happening again, he would be liable for racial harassment

    Employers also have obligations to current employees along similar lines. They therefore have obligations not to:

    • Discriminate against employees (s.39) (as to terms on which they are employed; the ways in which (or whether) access to opportunities for promotion, training or transfer or receiving any other benefit, facility or service is afforded)
    • Victimise employees (s.39) (as to terms on which they are employed; the ways in which (or whether) access to opportunities for promotion, training or transfer or receiving any other benefit, facility or service is afforded)
    • Harass employees (s.40) (as above either by the employer or by 3rd parties)
    • Fail to make reasonable adjustments

    Examples given of direct discrimination and victimisation include:

    An employer decides not to shortlist for interview a disabled job applicant because of her epilepsy. This would be direct discrimination.

    An employer offers a woman a job on lower pay than the set rate because she is pregnant when she applies. She cannot bring an equality clause case as there is no comparator. However, she will be able to claim direct discrimination.

    An employer refuses to interview a man applying for promotion, because he previously supported a discrimination case against the employer brought by another employee. This would be victimisation.

    An employer enforces a ‘no beards’ policy by asking staff to shave. This could be indirect discrimination, because it would have a particular impact on Muslims or Orthodox Jews.

    Contract workers

    Contract workers can be afforded protection against discrimination, harassment, victimisation and failure to make reasonable adjustments under the Equality Act 2010 against either their employer (the agency that employs them) or their principal (the person that they have been contracted to to undertake work).

    The employer has the obligations alluded to above. The principal, on the other hand, has alternative obligations as laid out in s.41. The principal must not:

    • Discriminate against contract workers (as to terms on which contract workers should do work; by not allowing them to do the work; in the way that the principal affords access to opportunities for receiving a benefit, facility or service; and by subjecting the worker to any other detriment)
    • Victimise contract workers (as to terms on which contract workers should do work; by not allowing them to do the work; in the way that the principal affords access to opportunities for receiving a benefit, facility or service; and by subjecting the worker to any other detriment)
    • Harass contract workers
    • Fail to make reasonable adjustments for contract workers

    Example:

    A hotel manager refuses to accept a black African contract worker sent to him by an agency because of fears that guests would be put off by his accent. This would be direct discrimination.

    A bank treats a female contract worker less well than her male counterparts, for example by insisting that she makes coffee for all meetings. This would be direct discrimination.

    Partners and applicants for partnership
    As with employees and applicants for employment, partners and applicants for partnership are afforded anti-discrimination protection under the EA 2010, s.44.

    Applicants for partnership must not be:

    • Discriminated against (in terms of arrangements as to whom it decides to offer a position as partner; as to the terms on which it offers the person a position as partner; by not offering that person a position as a partner)
    • Victimised (in terms of arrangements as to whom it decides to offer a position as partner; as to the terms on which it offers the person a position as partner; by not offering that person a position as a partner)
    • Harassed

    Partners enjoy similar protection. The partnership has obligations not to:

    • Discriminate (as to the terms on which a person is a partner; in the way (or whether) the person is afforded access to opportunities for promotion, transfer, training or for receiving any other benefit, facility or service)
    • Victimise (as to the terms on which a person is a partner; in the way (or whether) the person is afforded access to opportunities for promotion, transfer, training or for receiving any other benefit, facility or service)
    • Harass
    • Fail to make reasonable adjustments for disabled partners

    Members of Limited Liability Partnerships (LLP’s) and applicants for membership of LLP’s enjoy very similar protection to that afforded to partners and applicants for partnership.

    Examples:

    An LLP refuses a member access to use of a company car because he has supported a discrimination or harassment claim against the LLP. This would be victimisation.

    An LLP refuses a Muslim member access to its child care scheme because all the other children who attend the scheme have Christian parents. This would be direct discrimination.

    A gay partner in a firm, who, because of constant homophobic banter, feels compelled to leave his position as a partner, can claim to have been expelled from the partnership because of his sexual orientation. Should an Employment Tribunal agree with him, the firm could be found to be in breach of these provisions in a similar way to how the Employment Tribunal would find for an employee who wins a claim for constructive dismissal

    Well, that’s all for today, folks. We’ll be covering the other special categories of workers in a future post


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    The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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