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In Great Britain, discrimination in the employment field is prohibited on the grounds of:

• Sex (including pregnancy), marital status and gender reassignment;
• Race, colour, nationality, ethnic or national origins;
• Age;
• Disability;
• Religion and belief;
• Sexual orientation and civil partnership status;

Eligibility

• It is not only employees who benefit from this protection – a much wider category of workers including casuals, temps, agency workers and contract workers also benefit from protection.
• A worker does not need to have a minimum amount of continuous service with the employer to benefit – indeed protection extends to both prospective and former workers.

Each piece of legislation uses different definitions but, despite this, some common themes emerge:

• Direct Discrimination occurs when a person is treated less favourably on prohibited grounds such as sex, race, age etc.  For example: requiring a man for a job which a woman is equally competent to do.
• Indirect Discrimination occurs when an employer applies a seemingly non-discriminatory provision, criterion or practice which is unjustified and which will have a disproportionate impact on a particular protected group and the claimant suffers a detriment as a member of that group.  For example: requiring job candidates, without good reason, to be over 5ft 6in tall will have a disproportionate adverse impact on women.
• Harassment occurs when, on a prohibited ground, an employer (or his employee) engages in unwanted conduct which has the purpose or effect of violating the worker’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for that worker.  For example: teasing a worker about his age.  Harassment in relation to sex may also arise as a result of the behaviour of third parties (e.g. customers).
• Victimisation occurs when a person is treated less favourably because they have, intend to, or are suspected of, bringing a claim, giving evidence in support of another worker’s claim or alleging that discrimination has occurred.

Forms of discrimination

Generally, in the employment field, the following forms of discrimination are unlawful:

• Discrimination during the recruitment process e.g. discriminatory adverts, short-listing, interviews, selection, the terms of employment offered or by refusing or deliberately failing to offer employment on prohibited grounds;
• Discrimination on prohibited grounds during employment e.g. selection for promotion, transfer, training, the terms of employment which apply to the worker or any other benefit;
• Subjecting a worker to a dismissal or detriment (e.g. demotion, disciplinary action) on prohibited grounds;
• Subjecting a worker to harassment (e.g. bullying, teasing) on prohibited grounds;
• Subjecting a worker or former worker to victimisation (e.g. demotion, disciplinary action, refusal to give a reference) because they have made a complaint or supported another workers complaint of discrimination;

Disability discrimination

The Disability Discrimination Act 1995 (DDA) contains provisions on direct discrimination, victimisation and harassment that mirror the other legislation. However, there are some key differences:

• There is no concept of indirect discrimination in the DDA.  Instead, the DDA includes a duty to make reasonable adjustments to the work arrangements and work environment so as to avoid discrimination.  This concept has no direct equivalent in other strands of discrimination legislation;
• Disability-related discrimination occurs if, for a reason which relates to the disabled person's disability, the discriminator treats them less favorably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment is justified.  This concept has no equivalent in other strands of legislation.

As a result of a recent House of Lords decision, this form of disability discrimination has less importance than was previously thought.

Liability for employees / third parties

Claims for discrimination can be brought against the employer and/or whichever employee is responsible for the discrimination, harassment or victimisation.  Anything done by an employee in the course of his employment is treated as having been done by the employer.

An employer has a defence to claims relating to acts of employees if it can show that it took such steps as were reasonably practicable to prevent the employee from committing a discriminatory act.  An employer can also be held responsible for the sexual harassment of its staff by third parties (e.g. a customer sexually harassing a female staff member) if this is known to have occurred on at least two prior occasions and the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from harassing her.

Objective justification / genuine occupational requirements

Direct age discrimination, all forms of indirect discrimination and disability related discrimination are permissible if they can be objectively justified.  In general terms, to establish objective justification the employer must prove that the treatment or requirement in question is a ‘proportionate means of achieving a legitimate aim’.

What this phrase means depends upon the nature of the discrimination in question but it may include factors such as staff retention, genuine job requirements and encouraging staff loyalty.

For example, requiring cabin crew to be at least 5ft 6in tall will impact upon more women than men, but the requirement may be objectively justified if a person needs to be that size in order to operate the plane’s emergency exits.

There are a few limited circumstances when being of a particular sex, race, religion etc is a genuine requirement for the role in question.  For example: an Asian actor is required to play an Asian character in a play.  The provisions which allow an employer to discriminate in those circumstances are complex and differ depending upon which protected group the worker falls into.

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