| Topic Index |
|---|
| Overview |
| Unlawful sex discrimination |
| Unlawful race discrimination |
| Liability for sex and race discrimination |
| Enforcement and remedies |
| Resources |
Overview
- Employees and workers are protected from sex and race discrimination in the workplace by virtue of the Equality Act 2010 which, from 1 October 2010, consolidated all pre-existing legislation (e.g. the Sex and Race Discrimination Acts) into one Act of Parliament. 'Sex' and 'race' are two of the 'protected characteristics' under the Act.
- Protection from discrimination applies to recruitment; terms of employment; access to training and promotion; access to benefits, facilities/services; dismissal and certain post-termination situations.
Unlawful sex discrimination
- Direct sex discrimination occurs when an employee receives unfavourable treatment from the employer 'because of' his or her sex. This also covers less favourable treatment of a person because they are associated with someone with the protected characteristic of sex or based on a mistaken perception that the victim has the protected characteristic of sex.
- Indirect sex discrimination which occurs where the employer applies a provision, criterion or practice which puts a female (or male) employee at a disadvantage when compared with a male (or female) employee and the employer cannot show it is a proportionate means of achieving a legitimate aim.
- Victimisation occurs when an employee suffers less favourable treatment as a result of bringing a grievance or proceedings under the Equality Act or being a witness in such proceedings.
- Harassment occurs where there is unwanted conduct that has the purpose or effect of creating an 'intimidating, hostile, degrading, humiliating or offensive' environment. The conduct could be harassment of a sexual nature or harassment that is related to the sex of the person in question.
- Discrimination against transsexuals is unlawful direct sex discrimination - this covers those who intend to undergo, are undergoing or have undergone gender reassignment.
- It is unlawful to discriminate against an employee who has entered into a same sex marriage.
- Ex-employees are protected against victimisation by their former employers. For example, an ex-employee could bring a sex discrimination claim against a former employer who refused to provide a reference simply because the ex-employee had brought discrimination proceedings against it.
- Positive sex discrimination is unlawful. Job advertisements can encourage applications from one sex where they are under-represented in a particular role but selection for the post must still be on a merit basis and regardless of the applicant's sex.
- There are limited circumstances in which it is lawful to discriminate including when:
- the discrimination is necessary for health and safety reasons connected to pregnancy or maternity
- being of a particular sex is an occupational requirement, e.g. if a woman only health club refuses to employ a male manager when the manager's duties include showing customers around the changing rooms
Unlawful race discrimination
- Direct race discrimination occurs where there is unfavourable treatment of an employee or worker on racial grounds. This may be more difficult to prove than direct sex discrimination and normally requires inferences to be drawn from the circumstances.
- Indirect racial discrimination occurs where the employer applies a workplace provision, criterion or practice which puts employees of a particular race, ethnic or national origin at a disadvantage when compared with other employees and the employer cannot show it is a proportionate means of achieving a legitimate aim.
- Racial harassment is unwanted conduct that has the purpose of effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
- Ex-employees are protected against victimisation by their former employers. For example, an ex-employee could bring a race discrimination claim against a former employer who refused to provide a reference simply because the ex-employee had brought discrimination proceedings against it.
- It is unlawful to discriminate against a former employee by subjecting them to a detriment or harassment where the discrimination or harassment arises out of and is closely connected to the employment relationship.
- As with sex discrimination, race discrimination is not unlawful if the employer can show that being of a particular race, ethnic or national origin is an occupational requirement and it is proportionate to apply that requirement in the circumstances.
Liability for sex and race discrimination
- Employers are liable not only for their own discrimination against employees and workers but also for:
- any discriminatory acts including harassment by their own employees and independent contractors in the course of employment regardless of whether those acts were done with the employer's approval (the perpetrators of the discrimination are also personally liable to pay compensation)
- the acts of employees outside working hours but only if the discrimination takes place at events organised by or connected to work (e.g. work-related social events)
- sexual or racial harassment of their employees by third parties in certain circumstances. The ‘three-strikes’ rule means that an employer cannot be held responsible unless the employer knows that the employee has experienced third-party harassment on at least two prior occasions (although the perpetrator need not be the same person on all three occasions).
Enforcement and remedies
- Enforcement of individual claims for sex or race discrimination is through employment tribunals.
- A complaint should be brought within 3 months of the act complained of although a tribunal does have discretion to extend this limit in certain circumstances.
- An agrrieved employee can use a questions procedure to try and obtain more information from his or her employer to decide whether to bring a claim. An employer's answers to these questions (or lack of them) can be used as evidence in the tribunal hearing.
- If the complaint is successful, the tribunal can make an order declaring the rights of the employee; order the employer to pay compensation (which is uncapped); or recommend that the employer takes specified steps to obviate or reduce the effect of any discrimination that has occured (this can include telling the employer to retrain its staff or publicise its selection/promotion criteria).
- Compensation is potentially limitless, unlike claims for unfair dismissal which is capped.
- Compensation can be awarded under the following heads of loss:
- loss of earnings and benefits (including the loss of pension benefits) to the date of hearing and for a specified future period
- injury to feelings - there are generally 3 bands of compensation for injury to feelings: a top band of £18,000-£30,000 for the most serious cases such as a lengthy campaign of discrimination; a 'middle' band of between £6,000 and £18,000 for serious cases which fall outside the top band; and a lower band of £500-£6,000 for less serious cases such as a one-off occurrence
- aggravated damages - this award reflects any malice or bad intention on the part of the employer in respect of the discrimination
Resources
ACAS
Business Link
CIPD
- Race, Religion and Employment
- Sex Discrimination, Sexual Orientation, Gender Reassignment and Employment
Equality and Human Rights Commission
Subscribers only - 
