Discrimination and harassment in England and Wales

Introduction

Employees or workers who feel that they have been unfairly treated often allege that they have been discriminated against. It is straightforward and inexpensive to bring a claim in the Employment Tribunal and there is no cap on the amount which can be recovered.

The concept of discrimination is very wide. In international organisations, corporate headquarters should ensure that cultural expectations or communication styles do not result in discrimination claims. Employers from other cultures should bear in mind that practices which are usual in their jurisdictions might be perceived as discrimination by local employees. To mitigate such risks, employers should review their work environment from the perspective of local employees, for example, considering whether individuals might consider that they are unfairly excluded or face limited career progression.

Discrimination law applies to all employers (including those who are not based in the UK) and most discrimination law protects job applicants, employees, agency workers, workers (a wider category of individuals than employees) and ex-employees.

Grounds on which discrimination is prohibited

It is unlawful to discriminate on the grounds of sex, gender reassignment, race, marital or civil partnership status, disability, sexual orientation, religion or belief, age, part time and/or fixed term status and trade union membership.

There is also protection against discrimination on certain other grounds, including those who have suffered a detriment relating to health and safety, Sunday working, working time, maternity and paternity leave.

Forms of discrimination

The law prohibits direct discrimination; indirect discrimination; harassment; and victimisation.

It is also unlawful to issue instructions to discriminate on one of the prohibited grounds.

Direct discrimination occurs if an individual has been treated less favourably than another has been or would be treated and the difference in treatment is because of one of the prohibited grounds. An example would be: a decision that only men will be eligible for a particular promotion.

Indirect discrimination occurs when a provision, criterion or practice (which is not capable of objective justification) is applied to a group of people but is to the detriment of a particular individual or group due to their sex, race, disability, age, sexual orientation, religion or belief etc. An example would be a requirement that an employee must speak Japanese fluently.

Victimisation is where an employee is treated less favourably as a result of having complained of discrimination, bringing proceedings for discrimination, helped another person to bring such proceedings or otherwise acting by reference to discrimination legislation.

Harassment is "unwanted conduct which has the purpose or effect of violating another person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for another" and includes sexual harassment.

Can discrimination be justified?

Discrimination may be lawful in certain circumstances. For example:

• employers may discriminate on certain of the grounds if it is an "occupational requirement"
• indirect discrimination can be objectively justified if it is a proportionate (or appropriate and necessary) means of achieving a legitimate aim, and
• both direct and indirect discrimination on the grounds of age can be objectively justified and lawful if it is a proportionate (or appropriate and necessary) means of achieving a legitimate aim.

Harassment cannot be justified.

Prohibited discrimination in practice

Discrimination (including positive discrimination) is prohibited throughout the employment relationship, including during recruitment, disciplinary action, dismissal and after termination.

Employers' liability

An employer is potentially liable for any acts of discrimination committed by an employee "in the course of employment", regardless of whether the employer knew or approved of the acts. The employer can only avoid this liability if they can show that they had taken "all such steps as are reasonably practicable" to prevent the discriminatory acts from taking place.

Diversity training for staff

There is no legal requirement to have diversity training for staff but a lack of diversity training may harm a defence to discrimination proceedings.

Enforcement

A person who believes that he/she has been subjected to discrimination or harassment in the employment arena can bring a claim before an employment tribunal. There is no minimum length of service requirement in order to bring a claim.

Remedies

If a tribunal upholds a discrimination complaint, it can make:

• an order declaring the rights of the parties
• an order requiring the respondent to pay compensation, or
• a recommendation that within a specified period the employer takes specified steps for the purpose of obviating or reducing the adverse effect of any matter to which the proceedings relate on the complainant or on any other person.

Compensation awards are uncapped and can include interest.