Discrimination
Q. Do we have to include an otherwise suitable job applicant on the short list if we
know he has had a recent brush with cancer?
A. Any individual who can prove that he (or she) has ‘a physical or mental impairment
which has a substantial and long-term adverse effect’ on their ability to carry out dayto-day activities is protected under the anti-discrimination provisions of the Disability
Discrimination Act. Even if there is currently no substantial adverse effect, an
individual with a progressive condition like cancer (even if it is in remission) would be
covered if the condition had produced an impairment which currently had some
adverse effect on their ability to carry out day-to-day activities, and was likely to lead
to a substantial adverse effect over time. Your best course is to base your decision on
whether or not to short list on written, objective criteria, and to keep a record of how
those criteria applied to all the candidates.
Q. Can I not just follow my instincts, when it comes to selecting amongst job
applicants?
A. No. Your instincts might be discriminatory, whether you know it or not, in which
case you might well fall foul of the anti-discrimination legislation (the Sex
Discrimination Act 1975, the Race Relations Act 1976, and the Disability
Discrimination Act 1995). This legislation protects individuals against discrimination in
employment, which includes the process of selecting applicants for jobs.
Ensure that your selection criteria are objective, and that any requirements are
justified, given the nature of the job. Do not make stereotypical assumptions (for
example, that a woman could not work with heavy machinery), as they may be
discriminatory. Also ensure that your selection process is not discriminatory (for
example the location and timing of your interviews, and your interviewing and
assessment techniques). Keep full records of your criteria and processes, and their
application to all candidates, detailing the reasons for the decisions made.
Q. Can I exclude a couple of men who have applied for jobs normally done by
women?
A. No. This would be discriminatory. If, however, you can prove that being a woman
is a Genuine Occupational Qualification for the job, the discrimination would be lawful.
This would normally apply only where:
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authenticity is involved – for example, where someone of a particular sex is
required for an advertisement or television part;
personal services are required – for example, a social worker serving a
particular ethnic group; or
decency or privacy is involved – for example, for a job in a residential
establishment, or involving physical contact.
This defence is limited, and will be interpreted narrowly by an Employment Tribunal.
You will not be able to use it to disguise an otherwise discriminatory reason for nonselection.
Q. Can I give jobs to older women, who will not get pregnant?
A. Discriminating against someone because of pregnancy or childbirth is illegal.
Discriminating against someone because they might become pregnant in the future
certainly flouts the spirit of the law, and discriminating against younger women also
falls foul of the Code of Practice on age discrimination. This Code does not have the
force of law, but will be taken into account by an Employment Tribunal. Moreover,
legislation barring age discrimination is on the way. By December 2006 the UK must
have introduced new legislation to implement a European Union Framework Directive
in this area.
Q. Can I give jobs to older women, who will not get pregnant?
A. Discriminating against someone because of pregnancy or childbirth is illegal.
Discriminating against someone because they might become pregnant in the future
certainly flouts the spirit of the law, and discriminating against younger women also
falls foul of the Code of Practice on age discrimination. This Code does not have the
force of law, but will be taken into account by an Employment Tribunal. Moreover,
legislation barring age discrimination is on the way. By December 2006 the UK must
have introduced new legislation to implement a European Union Framework Directive
in this area.
Q. We prefer to take on younger workers, even though we sometimes get applications
from older workers who are better qualified. Is this illegal?
A. There is no current legislation barring discrimination on age grounds, although
some will be introduced in the near future (see question 3). There is, however, a Code
of Practice which discourages ‘ageism’, and while this does not have the force of law,
it is likely to be taken into account by an Employment Tribunal in deciding whether an
employer has behaved reasonably and fairly.
You might also be guilty of indirect sex discrimination, if you decline to take on older
workers who have had ‘career breaks’. The majority of these workers are likely to be
women who have taken time off to care for their children during their early years.
Q. What do we do about an otherwise well-qualified candidate for a job dealing with
customers, who turns out to have a severe facial disfigurement?
A. Less favourable treatment of a disabled person can be justified under the Disability
Discrimination Act only if the reason for it is both ‘material to the circumstances’ of
the particular case, and ‘substantial’. It would be unlawful for you to turn down a
candidate, solely on the grounds that other employees, or customers, would feel
uncomfortable dealing with him (or her). This reaction would not count as a
substantial reason, justifying less favourable treatment.
Q. How can we find out what ‘reasonable adjustments’ for a disabled person are?
A. What is ‘reasonable’ will vary according to a number of factors, including the nature
of the disability, the nature of the premises, and the nature of the job. Common
examples of reasonable adjustments are widening doors, lowering light switches, and
allowing more flexible hours of work (for longer rest periods). The Code of Practice for
the Elimination of Disability Discrimination in Employment provides helpful guidance.
If you want to find out what adjustment would be needed, ask the disabled person,
and get expert advice from the Employment Service. In deciding whether this would
have been reasonable, an Employment Tribunal would take a number of factors into
account:
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whether the changes would be effective. There is no point in employers
undertaking substantial works if they would make no significant difference to
the disabled person’s ability to do the job.
whether the changes would be practical.
how much the changes would cost, and how reasonable this would be in terms
of the employer’s finances.
whether any assistance (for instance, a grant) would have been available.
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whether the changes would have breached other legislation – for example,
health and safety guidelines.
Q. We have few workers from ethnic minorities, although they make up a high
proportion of the local population. Can we advertise specifically to them?
A. Yes, but only with a view to encouraging them to apply: thereafter it is a question
of the best person for the job. It would be just as illegal to take on someone because
they came from an ethnic minority, as it would be to take them on because they were
white.
Q. We have a mixed workforce. Can we require people to take literacy tests, as a
recruitment requirement?
A. Provided that you can justify the tests by the requirements of the job, yes;
otherwise no. It would be reasonable to require people to demonstrate literacy if you
wanted them to write sales letters, but not if you wanted them to fill cans. If you
apply such criteria where it cannot be justified by the requirements of the job, you are
at risk of a charge of indirect discrimination.
If you do impose a literacy test, you must require all candidates for that post to
undertake it. Requiring applicants from ethnic minorities to undertake such a test,
while others are excused, is discriminatory.
You will also need to consider disability discrimination issues. For example, partially
sighted or blind employees should be provided with appropriate facilities (eg Braille).
Q. Are we vulnerable to a charge of discrimination if a black manager never gets a
bonus because he never gets awarded enough points by his peers?
A. It depends on the reason for the lack of points. If the points are awarded according
to an objective test (for example, the number of new clients introduced by the
manager), it will not be discriminatory. However, if the reason he is not being
awarded points is his colour, it clearly will be discriminatory. As the employer, you will
be held responsible unless you can show that you have taken such steps as are
reasonably practicable to prevent your employees’ discriminatory behaviour.
Q. Are we vulnerable to a charge of harassment because a black worker has heard a
couple of colleagues making cracks about coloured people?
A. Yes. It is unlawful to discriminate against an employee by subjecting him to ‘any
other detriment’ which puts him at a disadvantage. This can include subjecting a black
worker to offensive racial remarks from his colleagues. The test is whether a
reasonable employee could justifiably complain about his (or her) conditions or
environment. So you are vulnerable even if the employee in question is prepared to
carry on working and put up with the harassment.
You, as the employer, will be liable unless you take reasonable steps to prevent the
discriminatory behaviour. This could include taking disciplinary action against
offending employees, and ensuring that everyone is aware of your anti-harassment
policy (see last question).
Q. Can we be sued for discrimination on grounds of nationality, because we have
refused to confirm the contract of a Yugoslavian refugee?
A. Once refugee status has been granted, an individual has the same social and
economic rights as a UK citizen, including full access to employment. So your refugee
is entitled to the protection of UK employment legislation.
Discrimination is unlawful if it is on racial grounds, but racial grounds are defined
under the Race Relations Act as any of the following:
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colour;
race;
nationality;
ethnic or national origins.
If you are refusing to confirm the Yugoslavian’s contract on the grounds of nationality,
you are at risk of a charge of discrimination; but if it is for other reasons it will not be
discriminatory. If there are conduct or performance issues, however, a fair procedure
should be followed.
Q. Can we employ someone from Australia to work in our information technology
department? He is willing to work for less than the UK candidate.
A. No. That would be unlawful – unless you can obtain a work permit from Work
Permits (UK), which is part of the Home Office.
Work permits are required for people who are not nationals of one of the countries of
the European Economic Area, and are not entitled to work in this country. Numerous
criteria must be satisfied to obtain a permit, but in essence the job must be ‘skilled’,
and your search for an EEA employee must have been exhausted. You will be required
to produce evidence of advertising and active recruitment.
Some skilled jobs – often including IT positions – are listed as ‘shortage occupations’,
and obtaining a work permit for one of these is slightly easier. You will need to check
the list with Work Permits (UK), as it changes from time to time.
Q. We have a female employee on her third official warning. She now says she is
pregnant. Can we proceed with disciplinary action?
A. Unfavourable treatment of a female employee because she is pregnant amounts to
direct, unlawful, discrimination. In this case, however, since disciplinary proceedings
were started before you knew she was pregnant, it would be difficult for her to argue
(if poor conduct led to another disciplinary hearing) that she had been discriminated
against because she was pregnant. Be careful, however, to ensure that she is well
enough to attend any future disciplinary hearings, that they are conducted at a
convenient time, and that all normal disciplinary procedures are followed. Take
account of the fact that her pregnancy might explain her conduct. Otherwise any
dismissal may be procedurally unfair.
Q. If a woman wants to come back to work on a part-time basis, after having a child,
is she entitled to the same benefits as before?
A. Part-time workers are entitled to be no less favourably treated than comparable
full-time workers on similar contracts in the same employment; and moreover,
women are protected from discrimination on grounds of maternity. Your employee is,
therefore, entitled to the same benefits as her full-time colleagues, proportionate to
her working hours.
The Part-Time Workers’ Regulations provide you with a defence, if you can show that
different treatment of a part-time worker is justified on objective grounds. For
example, the administrative and other costs of calculating the pension benefits of
part-timers may be so great as to provide you with a justifiable reason for changing
their arrangements. But an Employment Tribunal would weigh the advantage to the
employee against the detriment to you.
Q. We had two mothers and one pregnant woman amongst recent redundancies. Now
they are claiming sex discrimination. Should we be worried?
A. It is unlawful to select an employee for redundancy because she is pregnant. If you
want to avoid claims for unfair dismissal and/or sex discrimination, ensure that your
selection is based on objective criteria such as time-keeping, absence levels (ignoring
maternity leave), and knowledge and/or skills. It is also unlawful to select an
employee for redundancy because she is a mother, although it might be more difficult
for her to prove because she would have to demonstrate that she had received less
favourable treatment than comparable fathers.
Be aware of the risk of indirect discrimination, too. For example, you might want to
keep on people who are willing to take on overtime from time to time, or to make
part-time employees redundant before full-time employees. But either policy could
indirectly discriminate against mothers, who are generally the main child carers, and
may not be able to meet your selection criteria. Even if you applied the same criteria
to both men and women, you would effectively be indirectly discriminating against
women.
Q. It is several months since we sacked a black employee who left claming race
discrimination. We have heard nothing since. Can we relax?
A. A claim of racial discrimination must be made to an Employment Tribunal within a
period of three months ‘beginning when the act complained of was done’. If your
employee left more than three months ago, he will be out of time for presenting such
a claim. However, the Employment Tribunal does have discretion to extend time,
when it would be ‘just and equitable’ to do so – for example, where there has been a
change in the law which would permit the claim.
Q. What are the penalties for race, sex and disability discrimination?
A. If you are found guilty of discrimination, you will probably be ordered to pay
damages to the employee (or job applicant) concerned. The damages are designed to
put the individual in the position in which he (or she) would have been, had the
discrimination not occurred. The award is likely to consist of compensation for the
financial loss that the employee has suffered.
However, the compensation award might also include an element for injury to
feelings. The size of this award depends upon the seriousness of the discrimination
and the effect it has had on the individual concerned. It is usually between £2,000
and £5,000, but there have been cases where injury to feelings has been assessed at
£40,000.
The Tribunal can also order you to take action to reduce or obviate the adverse effects
on the individual of the act of discrimination. If you fail to comply, further financial
penalties will follow.
Q. How long is it likely to be before a case comes to a tribunal, and how much will it
cost to defend?
A. Listing periods for Employment Tribunals vary, but it usually takes between three
and six months, from the date that the claim is issued to the Tribunal hearing.
The cost depends on the nature and complexity of the case, and to some extent on
the area in which it is being brought. A straightforward, one day, unfair dismissal
hearing would probably cost between £3,000 and £5,000, assuming that a solicitor
(based outside London and the south east) was acting for you throughout.
Discrimination cases are invariably longer and more complex – and therefore more
expensive.
Q. How can we demonstrate that we oppose discrimination? And would it help if we
were ever subject to a case?
A. Make sure that you have a written policy, and that it has been issued to all
employees. Also make sure that your managers are all trained in discrimination
matters, and that you have effective monitoring procedures. It is vital that all steps
that are reasonably practicable – including if necessary disciplinary action against
employees who engage in discriminatory activities – are taken to provide a
discrimination-free environment.
Such steps should help if you ever become subject to a discrimination case. If the
discrimination has been practised by your employees against your clearly-established
policies, it could mean that you escape liability altogether.