Research published by employment law firm Slater & Gordon in October 2013 showed that sexism still occurs in many workplaces. Ageism and sexism combine to marginalise older women in the workplace as well as the media. And there is also considerable evidence to indicate that black and minority ethnic (BME) workers as well as workers not from the UK continue to face hostility and racism.
However, the law is there to help and it can be a useful weapon in the battle for equality and diversity in the workplace.
The Equality Act 2010
In October 2010, the Equality Act 2010 replaced and simplified over 100 pieces of anti-discrimination legislation and also enhanced workers’ rights. It outlaws sexism, racism, ageism and other forms of discrimination in the workplace and promotes equality and diversity.
It sets out a number of so-called “protected characteristics”. Employers must not discriminate against workers on the basis of:
- Gender Reassignment
- Marriage and Civil Partnership
- Religion and Belief
- Sexual Orientation
- Pregnancy and Maternity
What is discrimination?
The Equality Act makes the following forms of discrimination unlawful:
- Direct discrimination – this is where someone suffers less favourable treatment because of a protected characteristic. It includes:
- Discrimination by association – where an individual is discriminated against because they have a connection to someone with a protected characteristic.
- Perceptive discrimination – where an individual is treated less favourably because they are incorrectly believed to have a protected characteristic.
- Discrimination arising from disability – where a disabled person is treated unfavourably because of something connected to their disability.
- Indirect discrimination – this is where an employer’s policy, practice or rule, that may apply to everyone, could disadvantage someone with a protected characteristic. The employer has a defence regarding indirect discrimination if they can justify it as “a proportionate means of achieving a legitimate aim”.
ACAS, the advice and conciliation service illustrates this with the following case: a small finance company needs its staff to work late on a Friday afternoon to analyse figures that arrive late because of the global time differences. During the winter some staff would like to be released early in order to be home before sunset – a requirement of their religion. They propose to make the time up later during the remainder of the week.
The company is not able to agree to this request because the figures are necessary to the business, they need to be worked on immediately and the company is too small to have anyone else able to do the work. In this case, the requirement is not unlawful indirect discrimination as it meets a legitimate business aim and there is no alternative means available.
- Victimisation – this is treating someone unfavourably because they have made complaints of discrimination. This could be on behalf of another person.
- Harassment – unwanted conduct which has the purpose or effect of violating someone’s dignity or which is hostile, degrading, humiliating or offensive. In most cases harassment will continue over a period of time, but it could be a single act.
Tackling discrimination and promoting diversity
In addition, the Equality Act requires employers to make reasonable adjustments for disabled workers. This could include re-allocating duties, altering their hours of work, providing technical aids such as adapted telephone or computer equipment or modifying the workplace.
Except in very limited circumstances, the Equality Act has made pre-employment medicals and questionnaires illegal. An employer is allowed to ask a question that is necessary:
- To establish whether any reasonable adjustments to the application process are needed.
- To find out whether the candidate will be able to carry out a function intrinsic to the role, after making any reasonable adjustments.
- To monitor diversity – in this case information should be anonymised and kept separate from the main application process.
- To support positive action for disabled people.
And under the Act public authorities, including local authorities, must consider how they can eliminate discrimination such as sexism, ageism and racism, harassment and victimisation, advance equal opportunities and foster good relations between those with and without protected characteristics.
Challenging racism and sexism in a tribunal
Though rare, a successful claim for discrimination can be very expensive for an employer. There is no cap on the amount of compensation an Employment Tribunal can award.
If you are considering taking an employment tribunal claim you should seek advice from your trade union as discrimination law is complex and there are time limits to comply with. In addition, most trade unions pay their members’ tribunal fees if they back the claim.
If you are not a member of a trade union, the Ministry of Justice website provides information about the process of making an employment tribunal claim and where you can go for further advice.
More information on the Equality Act 2010 can be found on the Equality and Human Rights Commission website.