Discrimination and Employment Law

What is Direct discrimination in the workplace?  This is where a worker is treated differently because of a protected characteristic.

What are the protected characteristics? The Equality Act 2010 protects everyone from being discriminated against because of nine protected characteristics: age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

How do you prove discrimination in the workplace? Direct discrimination is best thought of in terms of comparative treatment. Although not necessary under the definition of direct discrimination the tribunal can find that your employer treated you less favourably than the employer would treat a comparator, sometime this can only be addressed by first considering why you were treated as you were. 

If the Tribunal accepts that you were treated unfavourably because of your female sex, it usually follows that the employer would have treated a hypothetical male comparator better, for further reading about this principle one should consider the case of Aylott v Stockton-on-Tess BC [2010] EWCA Civ 910.

Does an employee have to establish that discrimination is the only reason for the employer’s treatment? No. The protected characteristic need not be the only basis for the employers’ actions. It is enough If the protected characteristic was ‘an important factor’ or had significant influence on the outcome. For an example of this principle being applied, one should refer to the case of Owen Briggs v James [1982] ICR 618.

If an employer is found to have discriminated against an employee, can they argue it was justified? Except in some direct age discrimination cases no. An employer is unable to argue that direct discrimination was justified. Once an employer has treated a worker less favourably because of a protected characteristic, there cannot be good reason for doing so.

What can an employee be awarded in discrimination cases and is compensation capped? Unlike for unfair dismissal there is no upper statutory limit on the award. An award of compensation should compromise comprise all loss directly caused by the act of discrimination including past and future loss of earnings, loss of opportunity and injury to feelings.

The compensation must enable the employee’s loss and damage sustained because of the discrimination to be made good in full. As with unfair dismissal cases a tribunal can reduce compensation for a discriminatory dismissal to reflect the chance that the claimants would have been dismissed even if the employee had not been discriminated against, for example where an employer discriminates by assessing a worker badly against redundancy selection criteria but even if the worker had been scored fairly and without discrimination, the employee would still have been scored less than others. This type of reduction in compensation would be unusual in other types of discrimination case, because it’s not normally possible to say what would have happened to a worker had they not been discriminated against.

For advice about your employment matter contact Clodes Solicitors today.

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