September 2016: An ECJ decision highlights that employers should be cautious of applying automated selection criteria to bulk job applications as unintentional discrimination against applicants could occur. While sham applications to bring claims do occasionally occur, such job applicants are rare and employers should be wary of raising any suspicion that an applicant is not genuine unless there is compelling evidence otherwise.

In this case, the ECJ held that where an individual applies for a job only to seek compensation for discrimination, and not to obtain employment, they will be outside the scope of both the EU Discrimination Directives. The purpose of the Directives is to protect those in employment or seeking employment; an individual who applies for a position only to bring a claim could not be said to be seeking employment.

January 2016: Instruction not to speak native language at work not race discrimination: Many businesses now have employees who do not speak English as their first language and who understandably wish to speak in their first language to other colleagues of the same nationality, or by telephone to family and friends while at work. However, this can potentially cause problems with other employees who do not speak that language who may feel excluded.

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal’s decision that an instruction to an employee not to speak Russian at work was not direct race discrimination or race harassment. The employer had a reasonable explanation for its actions that was unrelated to the employee’s nationality or national origins.

If an employer decides that it has good business reasons to justify a language requirement at work, it should ensure that the requirements of the policy are clear, and that it is applied in a consistent way to employees of all nationalities. If an employer considers it necessary to implement a policy regarding spoken language at work, it seems preferable for it to be a requirement to speak English (or another specified language) rather than a requirement to not speak a particular language or languages.

September 2015: Indirect Discrimination: protected characteristics: Businesses should be aware of an ECJ judgment that will have huge implications for indirect discrimination law in the UK. The court held that a person may claim indirect discrimination under the Race Directive (2000/43/EC) even though they do not possess the protected characteristic that has given rise to the discriminatory practice in question. If everyone is intended to be the beneficiary of the rule against indirect discrimination, it will become harder for businesses to identify who might bring a claim. People who could not previously establish that they belonged to a disadvantaged group may seek to bring claims if they are “suffering alongside” a disadvantaged group.

A man making a request to work part-time for childcare reasons and being refused, on the basis that there is a requirement to work full-time, is a good example. He would struggle to establish that he belonged to a disadvantaged group (it being commonly accepted that a requirement to work full-time disadvantages women more than men due to their greater role in childcare). However, this case strongly suggests he could bring his claim as a person suffering alongside the disadvantaged female group.

May 2015: Award for Injury to Feelings: A recent employment tribunal case provides a useful illustration for employers of how not to conduct an investigation into discrimination allegations. The tribunal awarded £19,500 for injury to feelings to a zero hours worker who was subjected to gender harassment. While the harassment was not of the very worst type, there were certain aggravating features which merited a high award.

The claimant was particularly vulnerable due to her young age and fragile mental health. Also, the perfunctory nature of the employer’s investigation, followed by its protracted and ultimately inadequate way of dealing with the problem, magnified the effect of the harassment on the claimant.

March 2015: Non – Payment of Bonuses: Following a case in the Employment Appeal Tribunal (EAT), employers with bonus schemes that are linked to attendance should ensure that there is sufficient flexibility within the schemes to avoid withholding payment in circumstances where it is likely to be discriminatory. The EAT upheld an employment tribunal’s decision that an employer discriminated against disabled employees by operating a bonus scheme, which did not pay out to employees who had received a warning for high levels of sickness absence.

The employer had reasonable adjustments in place to delay the issuing of a warning to an employee who was absent due to a disability. However, the fact that receiving a warning led to an automatic disqualification from the bonus scheme was discrimination arising from disability.

This business briefing sets out the different types of discrimination that can occur within the workplace and highlights practical steps a business can take to help avoid breaching discrimination law.

Why is it important to know about discrimination laws? Discrimination law is designed to:

  • Ensure equality of opportunity at work
  • Protect employees’ dignity
  • Ensure that complaints can be raised without fear of reprisal

What are the penalties for failing to comply with discrimination laws? 

  • High compensation payments: There is no limit on the amount of compensation that can be awarded
  • Expensive litigation: Litigation can involve significant management time and legal costs, which are not usually recoverable
  • Damaging publicity: Allegations of discrimination or harassment are likely to create bad publicity for a business. It is better to avoid giving rise to a claim, than to manage a crisis after a claim has been made
  • Negative impact on staff morale: Discrimination and harassment issues can be highly emotive and the process may have a negative impact on staff morale

What areas of working life are covered? Discrimination law covers all areas of employment, including:

  • Job adverts and the recruitment process
  • Conduct during employment
  • Work social events
  • Job references

What types of discrimination are prohibited? Businesses must not discriminate against employees on the basis of:

  • Sex (for example, a business must not offer a male candidate a more attractive health care package than a female candidate for the same post)
  • Gender reassignment
  • Being pregnant or on maternity leave (for example, a business should not delay the promotion of a female employee because she is on maternity leave)
  • Being married or in a civil partnership
  • Race (including ethnic or national origin, nationality and colour). For example, it could be unlawful to refuse to promote an employee on the basis that English is not their first language
  • Disability (for example, a business cannot dismiss a disabled employee simply for taking substantial periods of sick leave, if they are off work because of their disability)
  • Sexual orientation (for example, if a business invites employees’ partners to a social function, the invitation should be extended to same-sex partners)
  • Religion or belief (for example, it may be unlawful to prohibit headwear at work, as this may discriminate against Sikhs who wear turbans for religious reasons)
  • Age (for example, choosing not to interview a candidate because their application suggests they are nearing retirement age is discriminatory)

Protection from harassment

  • Harassment is any unwanted conduct that has the purpose or effect of:
    • violating a person’s dignity, or
    • creating a hostile, degrading, humiliating or offensive environment
  • It is discriminatory if it is related to any of the characteristics listed above. For example, it is important to make sure more junior staff are not belittled or humiliated due to their lack of experience

Protection from victimisation: A business must not discipline an employee who either:

  • Brings a discrimination claim against the business
  • Gives evidence on behalf of a colleague in an employment tribunal

What are the main defences to a discrimination claim?

  • Justification: In limited circumstances, an employee’s treatment may not be discriminatory, if it can be objectively justified. For example, a requirement to have excellent written English skills may indirectly discriminate against non-British job applicants, unless the business can show that the aims of the job in question cannot reasonably be met without that requirement.
  • Occupational requirements: It may be lawful to discriminate if having a particular characteristic is an occupational requirement. For example, a Catholic school may require its religious education teacher to be a Catholic.
  • The law requires the business to discriminate: There are some instances in which a business may be required by law to do something discriminatory. For example, immigration legislation may require the business to refuse to employ a non-EU job applicant on the grounds of their nationality, even if they are the best qualified person for the job.

Practical steps to take to help avoid breaching discrimination law

  • Provide staff with employment handbooks (including policies on equal opportunities and harassment) setting out what constitutes acceptable behaviour and what does not
  • Provide training on equal opportunities and harassment. This may help managers:
    • avoid inappropriate questions at interviews, and
    • recognise and deal with harassment at an early stage
  • Set up clear procedures for staff to:
    • raise concerns and complaints, and
    • deal with complaints
  • Ensure discriminatory behaviour by staff is not tolerated and is dealt with through proper disciplinary measures
  • Review employment contracts, policies and employee share schemes to ensure they comply with the law
  • Make reasonable adjustments where this will alleviate difficulties suffered by a disabled employee in the workplace (for example, by installing wheelchair ramps)
  • Where possible, accommodate workers’ different cultures and religious beliefs (for example, requests for time off to pray should be allowed, unless a refusal can be justified)
  • Try to accommodate requests for family-friendly hours by employees with childcare or other family commitments, unless a refusal can be justified
  • Undertake equal opportunities monitoring, but do not use the forms as part of recruitment or other decision making

The content of this Business Briefing is for information only and does not constitute legal advice. It states the law as at September 2016. We recommend that specific professional advice is obtained on any particular matter. We do not accept responsibility for any loss arising as a result of the use of the information contained in this briefing.