An article from last week highlights the pervasive problem of discrimination in the workplace, particularly with reference to the restaurant industry. This discrimination extends to all types of discrimination – not just sexual discrimination but race discrimination, age discrimination, and disability discrimination. Discrimination relating to a worker’s protected characteristic is prohibited under the Equality Act 2010. However, workers are too often unwilling to assert that they have been discriminated against because they’re afraid of losing their jobs. A lot of workers in restaurants are also either relatively young and/or are immigrants to the United Kingdom. This means that they lack awareness of their rights in the workplace.
The following (main) types of discrimination can occur in any workplace, including in a restaurant environment:
1. Direct discrimination
2. Indirect discrimination
3. Harassment (sexual or otherwise)
We’ll deal with direct discrimination and indirect discrimination in this post and with the other two areas in a future post.
Direct discrimination occurs when a worker (we’ll call the worker “Victoria” for the purpose of this exercise) is treated less favourably than other employees because of her protected characteristic (their age, race, disability, sex, sexual orientation etc. – in this case, her gender). There has to be a comparator in such a case. This comparator can either be actual (e.g. another worker who doesn’t possess the worker’s protected characteristic) or hypothetical (the construction of a fictional worker who isn’t the same nationality as Victoria). Victoria is a waitress in “Danny’s Burgers”. She aspires to work in management at the restaurant but feels that she keeps getting unfairly passed over for promotion. One day she asks Danny, the owner of the restaurant, why she is never given the opportunity to work in management at the restaurant. Danny turns round to her and says “well it’s because you’re a woman, innit, and everyone knows women aren’t as clever as men”. This would be a clear case of direct sex discrimination – Victoria has been treated less favourably than other male workers because she is female. You could probably also point to actual comparators in such a circumstance. There is no defence to direct sex discrimination – once direct sex discrimination has been proven on the balance of probabilities the employer cannot justify it.
Indirect discrimination occurs when a Provision, Criteria or Practice (“PCP”) is applied to a particular group of workers with the same protected characteristic, and this PCP places both that group of workers and the particular worker suing at a particular disadvantage as compared to other employees who do not possess that protected characteristic.
We’ll use Victoria and Danny’s Burgers again for this example. Victoria is female (again) and Muslim. There are other workers of the same faith at the restaurant. Danny’s Burgers operates a policy that all their waiters and waitresses must work the lunch shift on a Friday as it gets extremely busy. However, the devout Muslim workers at the restaurant are obliged to attend their local mosque at mid-day on Friday for religious reasons. Victoria is unhappy with this. Danny’s Burgers’ policy would be a “Practice” in the circumstances. This Practice does disadvantage Muslim workers substantially as compared to non-Muslim workers. Both Victoria and the other Muslims are affected. This therefore fulfils the criteria applicable to indirect discrimination. However, unlike direct discrimination, there is a defence available to indirect discrimination. This is whether the PCP has at its heart a proportionate means of achieving a legitimate aim.