Answer ... In the United Kingdom, discrimination can occur at any stage of the employment cycle, including before employment begins at the recruitment stage. Discrimination may impact on:
- the terms and conditions of employment;
- the application of policies and procedures;
- day-to-day management decisions;
- the termination of employment; and
- standards of behaviour in the workplace.
Discrimination can take several different forms. It may be direct – treating someone less favourably than others because of a protected characteristic (see below); or indirect – putting rules or arrangements in place which apply to everyone, but which put people with a certain characteristic at a particular disadvantage. It might be lawful to have those rules or arrangements in place, as long as they can be justified by the employer. This means that the employer must show that it is pursuing a legitimate aim proportionately.
Other forms of discrimination include harassment (unwanted behaviour linked to a protected characteristic that violates the employee’s dignity or creates an offensive environment for him or her) and victimisation (treating someone unfairly because he or she has complained about discrimination or harassment). There are also additional forms of discrimination specific to disability. ‘Disability’ is defined as a “physical or mental impairment which has a long term adverse effect on an individual’s ability to carry out normal day to day activities”. This confers wide-ranging protection incorporating many health conditions, including neuro-diverse conditions such as autism and dyslexia.
Answer ... In the United Kingdom, employees and workers are protected against discrimination because of specific protected characteristics – namely sex, race, disability, age, religion and belief, pregnancy and maternity, marriage and civil partnership, gender reassignment and sexual orientation. Additional provisions set out the right to equal pay when comparing men and women. Part-time and fixed-term contract employees are also protected from being treated less favourably because of the part-time or fixed-term nature of their contracts.
Answer ... As noted above, employees and workers are protected against four main forms of discrimination in the workplace.
There are two additional forms of protection for disabled employees:
- They should not be treated unfavourably for a reason arising from their disability; and
- Reasonable adjustments need to be made for them.
Both of these forms of protection are significant. Whether someone has been treated unfavourably arising from a disability is a low threshold and the employer must justify its treatment of the employee by showing the treatment is proportionate and in pursuit of a legitimate aim. Some examples of reasonable adjustments include adjusting selection criteria, reallocating duties, altering hours or place of work and acquiring or modifying equipment.
In addition, when a woman is on maternity leave, additional protections from redundancy mean that if a redundancy situation occurs and her position may potentially be redundant, she should be offered any suitable alternative vacancy ahead of others in the redundancy pool, even if she is not the best qualified for that role. This same protection applies to those on adoption leave and to men and women on shared parental leave.
Answer ... If an employee feels that he or she has been discriminated against, he or she must bring a claim for discrimination at the local employment tribunal (see question 6). A two-stage approach to the burden of proof applies in discrimination claims. The first question is whether the individual can show the employment tribunal facts from which the employment tribunal could infer, without any other explanation from the employer, that discrimination took place. If not, the claim fails. If so, the burden shifts to the employer to explain to the employment tribunal that it did not in fact discriminate.
Answer ... Where an individual succeeds in a discrimination claim, the employment tribunal may:
- give a declaration of the rights of the individual;
- make a recommendation to the employer aimed at reducing the adverse effects of the discrimination on the individual; and/or
- order compensation.
Compensation in discrimination claims is uncapped. It can cover a claimant’s financial loss (eg, loss of salary), but usually also includes an amount to compensate for injury to feelings. The level of injury to feelings compensation falls into three bands:
- a lower band of £900 to £8,800 (for less serious cases, such as an isolated or one-off occurrence);
- a middle band of £8,800 to £26,300 (for more serious cases that do not merit an award in the upper band); and
- an upper band of £26,300 to £44,000 (for the most severe cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race). In exceptional circumstances, awards can exceed £44,000.
Aggravated damages can also be awarded in discrimination claims. They can be awarded where the employer has acted in a “high-handed, malicious, insulting or oppressive manner”. Punitive damages are permitted in discrimination claims, but are rarely awarded. The law on awarding aggravated and punitive damages differs in Scotland from that of England and Wales. Punitive damages are unlikely to be awarded in Scotland. In addition, while English tribunals can make a separate award of aggravated damages in respect of an act of discrimination, this rule does not apply in Scotland.
Answer ... Harassment and victimisation are considered forms of discrimination in the United Kingdom and are dealt with as set out in question 4.1.
There is no freestanding employment right to bring a claim of bullying in the workplace; if the bullying behaviour is linked to a protected characteristic, the claim will be brought as a harassment claim under discrimination legislation. Another option, although rarely pursued, is for the employee to bring a civil claim for harassment and seek to have the employer held vicariously liable for any such harassment that took place in the workplace.
Alternatively, an employee with two years’ service could bring a constructive unfair dismissal claim. In order to win a constructive unfair dismissal claim, an employee must show that the employer has committed a serious breach of contract which has caused him or her to resign without undue delay. Bullying would be a breach of the mutual implied term of trust and confidence.