The word ‘discrimination’ is often used to describe being treated unfairly, but the law does not prevent employers from treating employees differently: otherwise managing a workforce would be impossible.
What the Equality Act prevents is employers treating employees differently for a particular reason which has nothing to do with their work but is based on something personal to them – these are called ‘protected characteristics’. That treatment is ‘unlawful’ and entitles the employee to damages.
There are 9 protected characteristics:
‘Belief’ has been developed further by the courts to include a particular philosophy or world-view, including veganism, man-made climate change, and public service.
There is no minimum length of service required for anyone to bring a claim for unlawful discrimination – in fact, a claim can be made by someone who never in fact ever becomes an employee, e.g. if a job advert is discriminatory (“young woman required”).
This is complicated. Employers and employees can both be liable for acts of discrimination which happen in connection with work. So claim for discrimination can be brought against the employer (as an organisation) and also against the individual who made the decision/comments etc.
It will be the role of the Employment Tribunal to decide whether the employers is liable for the acts of their employees, even though they may not have known or had any input into the decision. This is known as vicarious liability. An employer can contest vicarious liability by showing they took all reasonable steps to try to prevent discrimination from occurring in the first place, e.g. by means of training staff.
While claims for unfair dismissal are ‘capped’ in the ET at one year’s salary, there is no such limitation on damages for discrimination are technically uncapped in the amount a panel can award. The damages measure ‘injury to feelings’. Often this depends on medical evidence, e.g. whether any medication was required. There are published guidelines, known as the ‘Vento’ bands, which are Lower (£900-£9000), Middle (£9000-£27,000), and Upper (£27,000-£45,000).
There are 4 ways in which discrimination can occur due to any of the 9 protected characteristics:
Direct discrimination, Indirect discrimination, Harassment, Victimisation:
There are two additional ways in which those who are treated as disabled under the Equality Act can be discriminated against – failure to make reasonable adjustment and discrimination arising from disability. These are also a whole host of rules covering employees who take maternity leave. Each are covered in more detail in our dedicated pages to disability discrimination and maternity rights.
If you are facing a claim, or are being treated unfavourably at work, then contact our team of expert Employment Lawyers who can advise you about what options you have. Call us on 0141 429 8166 or complete our online contact form.
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