So, having covered the various elements of the new-ish Equality Act 2010, what do you have to think about if you believe you’ve been discriminated against?

Preliminary questions

  1. Are you a job applicant, employee, former employee, contract worker, self-employed or an apprentice?
  2. Who is your claim against? (It could be a legal or a natural person)

Direct discrimination

Useful questions that should be asked if you think you’ve include:

  1. What treatment have you been subject to?
  2. Why do you think you have been subjected to this treatment?
  3. Is there evidence that anyone who doesn’t share your protected characteristic has been treated more favourably than you in the same or similar circumstances?
  4. Is there a history of less favourable treatment? If so, have you recorded it?

If the less favourable treatment relates to the protected characteristic of ‘age’ then try to determine whether the Respondent can justify this treatment – whether the aim of the less favourable treatment was legitimate and whether such action was proportionate to the aim that was being pursued.

Indirect discrimination

  1. What was the discriminatory act? (i.e. refusing to employ you, dismissing you, denying promotion, disciplining you etc.)
  2. What is/was the Provision, Criterion or Practice (to be looked at individually, not cumulatively) which you are alleging is discriminatory?
  3. What is your protected characteristic?
  4. Is the PCP applied to both people who share your characteristic and people who do not share your characteristic?
  5. Does the PCP put people who share your characteristic at a disadvantage to those who do not?
  6. Is the PCP in fact disadvantaging you?
  7. Can your employer show that the PCP was a proportionate means of achieving a legitimate aim?

The PCP

Potentially discriminatory PCP’s include:

Race discrimination:

  • The need for qualifications (formal, university education, English language certifications etc.)
  • The way you dress (i.e if there is a requirement of no turbans or a certain uniform)
  • Your language skills (your fluency in English, articulation, requiring you to gain new technical skills in a short space of time etc.)
  • Requiring you to have a certain amount of experience (work, management, grade, certain promotions etc.)
  • Requiring you to live in a certain area
  • Requiring you to take certain shifts or attend at certain times

Sex discrimination:

Most of the above apply to sex discrimination but please find below other areas:

  • Requiring you to work certain shifts or to be ‘inflexible’ in working hours (for reasons of childcare)
  • Mobility requirements (that you undertake long commutes or spend time overnight for work purposes, that you relocate etc.)
  • Requiring that you work certain hours (requiring full-time work, for example, or that certain hours be worked if you work part-time)

Religious discrimination:

  • Requiring a certain dress code
  • Requiring certain alcohol and food be eaten or encouraging their eating
  • Requiring that employees work or refrain from working on certain days (or refrain from taking breaks at certain times)

Sexual orientation discrimination:

  • Requiring that only married people or civil partners have access to some opportunities or benefits
  • Requiring a clean criminal record

Age discrimination:

  • Requiring certain things of older workers (a limit on experience, that they have IT skills or are a recent graduate etc.)
  • Requiring certain things of younger workers (experience or long service)

Disability discrimination:

  • Banning dogs
  • Requiring certain experience
  • Requiring you to work at a certain place
  • Requiring you to work at certain times etc.

Victimisation

You need to identify:

  1. That you have done (or may do) a protected act (bringing proceedings under EA 2010, for example) and that protected act was engaged in good faith
  2. What detriment you have suffered as a result

Harassment

You need to identify:

  1. What the type of conduct you have suffered is – is it sexual or of another nature?
  2. That this conduct was clearly unwanted
  3. That the conduct either was intended to make you feel or made you feel intimidated or degraded etc.

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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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