Frequently Asked Questions on Diversity Employment Law
Are employers free to decide on the skills, knowledge and qualities that
they want from employees?
Employment decisions should be based on merit but all aspects of the
recruitment and selection process must be free from bias and unlawful
discrimination. The law does not demand that you give preference to people
just because they are from an under-represented part of society but it does
demand fair and equal respect. Further information can be found on our
Personnel procedures.
Can the University positively favour an individual from an underrepresented group?
This is known as positive discrimination and this is currently (July 2008) illegal
in Britain under the Race Relations and Sex Discrimination Acts. An example
would be where an organisation seeks to increase the number of female
employees by only short-listing female job candidates.
The Equality Bill which will be announced in the Queen’s speech in November
2008 and published in spring 2009 will introduce some changes as it will look
to extend the scope of ‘Positive Action’ to allow universities to take underrepresentation into account when selecting between two equally qualified
candidates in the area of staff recruitment. This provision will be optional, not
mandatory. It is likely to prove one of the most controversial elements of the
new Bill. This power is already in use elsewhere in Europe, and for example in
Scandinavian universities it is now common to see advertisements which
state that ‘priority will be given to a person of an underrepresented sex (in this
case women), when applicants are otherwise equal.’ The difficulty is that in
practice it is unusual for applicant to be ‘equal’ and it remains to be seen how
and in what ways higher education institutions might choose to use the new
powers. For more information on this, go to www.ecu.ac.uk.
Can you have minimum levels or quotas from certain groups of
employees?
You will probably have heard of cases where it has been suggested that
minimum levels or quotas of people from certain groups should be employed:
for example that a firm should have at least 50% female employees or that at
least 3% should be people with disabilities. Quotas of this kind are illegal in
the UK.
However, in situations where a workforce is very biased toward or away from
certain groups it is perfectly legal to set targets that indicate how the numbers
might be changed. For example an employer in an area where 8% of the
population is Black but whose workforce is only 2% Black may set a target to
try and make the percentage of Black people employed more representative
by encouraging more to apply. However, to avoid discrimination against white
people, decisions to appoint must still be based solely on merit.
A target is different from a quota – it is just a guideline to illustrate any
imbalances; to help people ensure that they are not accidentally
discriminating when they are employing; and to encourage different people to
consider particular jobs when they are seeking employment. It is good
practice to monitor employment and community profiles, and to track
changes.
If the University has an Equal Opportunities policy or have clear
policies, procedures, and practices that support diversity and equality,
surely they will not judged as being unfair?
That is true, however, it should be noted that if an organisation has a written
policy but fails to follow its own guidelines then its actions are automatically
unfair. The rule ‘failure to follow procedure is automatically unfair’ is an
important one.
Are employers legally responsible for the actions of their employees?
Yes except where the employer has taken clear steps to ensure discrimination
does not take place. Tribunals have interpreted ‘clear steps’ as meaning that
the employer has provided guidelines on how to treat people equally, together
with the necessary training. If you ignore the guidelines and training and act
unlawfully you could be held personally liable for your actions. In most
instances both the employer and the employee may be held liable for
discrimination.
What is direct discrimination?
This occurs where someone is treated less favourably than someone else in
similar circumstances just because of their gender, marital status,
ethnicity/nationality, age, disability, religion/belief, sexual orientation or race.
Direct discrimination is most likely to be obvious and easy to identify.
For example
A married man applied for a job at the Madrid base of his company but said
that he would not re-locate, as his wife would be keeping her job in England.
He made it clear that he was willing to commute and live apart for a time. The
panel assumed that he would lack commitment so he was not appointed. The
tribunal held that he had been discriminated against on grounds of marital
status.
An English project manager in a UK subsidiary of a Japanese company was
excluded from meetings which were conducted in Japanese. He was ignored
by his Japanese colleagues and dismissed because ‘his face didn’t fit’. This
was upheld at the tribunal as unlawful discrimination on grounds of race.
What is indirect discrimination?
This is where “A provision, criterion or practice which may have a
disproportionate effect on men or women” This is indirect sex discrimination
and it is usually more difficult to prove. The rules may, on the face of it,
appear to apply equally to everyone, however upon closer examination they
are likely to discriminate.
For example
A woman was appointed as a full-time cargo officer with an airline where she
always complied with the requirement to work overtime. After returning from
maternity leave she was asked to work two consecutive periods of 16-hour
shifts – back to back. When she said she could not do this she was
dismissed. She successfully claimed indirect sex discrimination.
Indirect discrimination can also apply where a condition or requirement,
although applied equally to persons of all racial groups, is such that a
considerably smaller proportion of a particular racial group can apply
A supervisor on a food production line noticed that a Sikh employee was
carrying an ornamental dagger under her clothes. The woman explained that
the dagger was one of the five ‘Ks’ that orthodox Sikhs must have on their
person at all times. The company had a rule that no jewellery was to be worn
and consequently dismissed her. The tribunal rejected the company’s
justification that removing the dagger was essential for food hygiene and
found that she had been indirectly discriminated against on grounds of race.
Answer the following three questions to test if you have understood the
difference between direct or indirect discrimination.
Discrimination Quiz
1. An unorthodox Jewish man is sacked for refusing to work on a Saturday
when all members of staff have been told they have to work that day although
Saturdays are not normally a working day for them. Is this?
a) Direct discrimination
b) Indirect discrimination
c) Not discrimination
2. A waiter refuses to serve a Sikh man because the dress code requires men
to remove their hats in the restaurant. Is this?
a) Direct discrimination
b) Indirect discrimination
c) Not discrimination
3. A woman is sacked for wearing trousers to work. Is this?
a) Direct discrimination
b) Indirect discrimination
c) Not discrimination
What is a Genuine Occupational Qualification (GOQ)?
There are a few instances when an essential qualification for the job is to be
either a man or a woman or to belong to a particular ethnic group. For
example, if someone is needed to do regular and persistent body searches of
women in prison it would be necessary for a woman to do the job unless this
could be overcome by making alternative provision.
If someone were playing the part of Lennox Lewis in a movie, it would be
appropriate for the actor to be a Black man.
It will not be classed as unlawful discrimination if the GOQ shows that it is
appropriate to employ certain groups of people.
However, it should be noted that the need for physical strength and stamina in
a job is never a justification for restricting a job to men only. This is based on
the fact that the variations within men as a group and the variations within
women as a group are far greater than the variations between men and
women as a whole. In short, any male or female who applies for a job
requiring certain qualities would need to demonstrate that they have those
qualities.
Failure to Comply with Discrimination Legislation
If a staff member or the university that employs them fails to comply with
discrimination legislation there are likely to be a number of serious
consequences, such as:
 The financial cost of defending a case at tribunal or in the courts and in
paying out compensation
 The time taken to resolve complaints
 Personal liability – disciplinary action could be taken against the
individual as well as the institution
 Loss of trust, reputation, confidence and community support. People
will be less inclined to interrelate with colleges or universities which are
seen to discriminate against them or a group they belong to – this can
affect student applications, work placements and both academic and
support staff recruitment
 Plus costs to the individuals concerned, not just financial but in terms of
the time, anguish and stress involved in taking action
Employment Tribunals
Employment Tribunals deal with the majority of claims arising in the course of
employment. They can award compensation and other ‘remedies’ (such as
ordering that reasonable adjustments are made or that people who have been
wrongly sacked are reinstated) and they make general recommendations
about how to avoid employment discrimination in the future. Appeals may be
made on a point of law only to the Employment Appeal Tribunal, then to the
Court of Appeal and eventually to the House of Lords. Where there is an
alleged breach in UK Law of European Law, appeals can be referred to the
European Court of Justice.
Courts
Most complaints and disputes related to ‘service’ can be resolved by
discussing them with the person complaining or the organisation they are
complaining about. If the dispute is not resolved at this stage then the two
options are conciliation or legal action. Cases of discrimination in services
provided (for example, where a person has received poor service due to their
Ethnicity, sex, disability, etc) are heard in the County Court.
What can happen?
In March 2000, a tribunal awarded £105,000 to an Irish man who had suffered
racial abuse and threats from his work mates for over three years on the basis
of his nationality
A Muslim woman wore her hijab (head covering) at work because of her
religious convictions. She became the target of abuse from then on. The
tribunal’s view was that wearing the hijab was related to the woman’s race as
well as her gender. She was awarded compensation of £26,000
A former detective was awarded £182,000 after she was forced to retire on
grounds of ill health after suffering years of sexual harassment and
discrimination
An employee with diabetes was awarded £6,000 compensation when the
company she worked for did not give her the regular short breaks she
required to reduce risks to her health
There is no limit to the level of compensation that can be awarded by
Employment Tribunals in discrimination claims.
Discrimination Quiz answers
1. Indirect discrimination
2. Indirect discrimination
3. Direct discrimination