Are you a victim of discrimination? Here’s how to defend yourself

Discrimination and English law (the Equality Act 2010)

Equality of treatment for all is a core value of the English legislature with various legislation enacted towards the end of the 20th century banning most types of discrimination.  

Equal pay between men and women became a legal right in 1970 followed by the Sex Discrimination Act in 1975, the Race Relations Act in 1976, and then the Disability Discrimination Act 1995.  Add to this three further pieces of primary legislation in the last decade covering employment equality rights, and the issue of discrimination is a well covered one.

Last year saw hundreds of thousands of discrimination claims settled by tribunals (and many more outside of the tribunal process) with compensation awards averaging £18,584 for racial discrimination and £19,499 for sex discrimination (including against pregnant women).  The largest awards given were £374,922 and £442,366 respectively, underlining the seriousness with which discrimination is treated, if proven.

Whilst offering significant protection to the public, the myriad of laws and regulations was becoming unmanageable and also in order to fall further in line with European law, they were all replaced by a single Equality Act 2010, which came into force on 1st October 2010.  

The act covers nine protected characteristics, which cannot be used as a reason to treat people unfairly. Every person has one or more of the protected characteristics, so the act protects everyone against unfair treatment.

‘Protected characteristics’

1. Age
2. Disability
3. Marriage or civil partnership
4. Pregnancy and maternity
5. Race
6. Religion or belief
7. Sex
8. Sexual orientation
9. Gender identity and gender re-assignment.

The Act sets out seven different types of discrimination, that is different ways in which it is unlawful to treat someone, which are prohibited for all those ‘protected characteristics’ (there are some exceptions, mainly around marriage/civil partnership and pregnancy/maternity).

Type of discrimination

1. Direct discrimination
2. Discrimination by association
3. Perception discrimination
4. Indirect discrimination
5. Harassment
6. Third party harassment
7. Victimisation

The ‘protected characteristics’ alone are simple enough to understand.  The seven ‘types of discrimination’ however are a relatively new categorisation and therefore less well understood, not just in the workplace relationship between employers and employees, but in many interactions between businesses and the public.

The act prohibits unfair treatment in the workplace, when providing goods, facilities and services, when exercising public functions, in the disposal and management of premises, in education and by associations (such as private clubs).
Each type is briefly explained below – more information including the full text of the legislation can be found at: http://homeoffice.gov.uk/equalities/equality-act/

1. Direct discrimination

This is the most obvious type of discrimination – for example, Adriana is passed over for promotion because her manager finds out she is pregnant.  On a related note but outside of the work context, mothers have a legal right to breastfeed in public (on premises) – they cannot be asked to go to a more private place.
Another common example given is that of dyslexics who now cannot be reprimanded for spelling mistakes.

2. Discrimination by association

Direct discrimination against someone because they are associated with another person with a protected characteristic – for example a solicitor who cared for her disabled son brought a claim against her former employers, claiming that she was criticised for taking time off and accused of using her son’s disability to her own advantage, which created a hostile working environment and ultimately resulted in her being disciplined.  

3. Perception discrimination

Direct discrimination against someone because others think they have a protected characteristic (even if they don’t) – for example, Piotr is teased by his manager for being gay, even though he isn’t.  Piotr would be within his rights to bring about a claim for perception discrimination.

4. Indirect discrimination

This covers rules or policies that apply to everyone but in doing so disadvantage a person with a protected characteristic.

It is worth noting that pregnancy & maternity and marriage are not protected against indirect discrimination.

5. Harassment

Employees can claim they find something offensive even when it’s not directed at them – for example, Mariusz is constantly exposed to derogatory comments about foreigners coming to the UK.  Although the comments are never made to him personally, he is the only non-English worker in the office and therefore has grounds for a claim of harassment.

6. Third party harassment

Under this measure, employers are liable for harassment of their employees by third clients, including customers, suppliers and consultants (people not directly employed by them but being paid to provide a service).  At first reading, this seems a draconian measure and indeed the Chancellor George Osborne announced in the 2011 Budget that the government would be consulting on whether to remove this from the Equality Act amidst claims that it was ‘unworkable’.  

For now though it remains in force but the detail of the provision is as important as its headline statement – the employer only becomes liable to a claim by the harassed employee if the employer knows that the employee has been harassed by a third party in the course of their employment on at least two previous occasions (not necessarily by the same person). If following the previous two occasions the employer has still not taken reasonable precautions to prevent a third incident, then the employee has grounds for a claim of third party harassment.

7. Victimisation

Discrimination against someone because they made or supported a complaint under the Equality Act 2010 – for example Jakub made a complaint about being discriminated against for being Polish.  Although that claim was settled by the company out of court, he is now being singled out by his shift manager who is careful to do it in a non-racist fashion. Jakub could now bring a claim for victimisation.

What to do if you’ve suffered discrimination

If you think you’ve suffered race discrimination there are a number of things you may be able to do:
• You can talk to the person or organisation that discriminated against you
• You can follow your employer’s a grievance procedure or make a claim to an employment tribunal if it is an employment problem
• You can publicise your case through the media
• You can take legal action through the courts
• You can send details of the problem to the Equality and Human Rights Commission if you believe the problem is widespread.

When deciding what action to take about race discrimination, you will need to think about what you are trying to achieve. For example, do you want financial compensation, justice or publicity? You will also need to think about how quickly you need to get a result.

Any course of action is likely to be complicated and may involve court action. You should consult an experienced adviser, for example, at your local Citizen’s Advice Bureau.

If you qualify for legal aid, you may get free legal advice and assistance from a solicitor. This comes under Legal Help (advice and assistance scheme in Scotland). You might also be able to get help with the cost of taking a case to court under Legal Representation.
 

By HAMILTON BRADY LTD,
www.hamiltonbrady.co.uk
Tel: 0844 873 6081
E-mail: info@hamiltonbrady.co.uk
Address: Springfield House
Water Lane, Wilmslow, Cheshire, SK9 5BG.

 

Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first displayed on this website.

You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact Hamilton Brady for a Consultation with a Solicitor on 0844 873 608.