The Equality and Human Rights Commission came into existence on 1st October 2007. A survey conducted for the Commission reveals that 46% of people in Great Britain believe that they have faced discrimination. The top causes were believed to be ethnicity, disability, religion, age and sexual orientation. In our monthly legal column Jeya Thiruchelvam, employment law specialist at Harding Evans Solicitors answers some key questions.

 

1.  What is the job of the Equality and Human Rights Commission?

The Commission has taken over the work of the previous three commissions (the Commission for Equal Opportunities, the Commission for Racial Equality, and the Disability Rights Commission) and is also responsible for the other aspects of equality including age, sexual orientation and religion or belief, as well as human rights.

2.  What is discrimination?

Discrimination is where an employer treats an employee less favourably than another employee on the basis of a ‘prohibited ground’. Less favourable treatment may take many forms including a joke, insult or other verbal comment, or at the other end of the spectrum a refusal to recruit someone or an actual dismissal. It is important to remember that less favourable treatment on its own is not enough to establish discrimination. There must be a link between the treatment and the prohibited ground i.e. it must have been caused by it. 

3. What are the current prohibited grounds?

An employer cannot discriminate against an employee on the grounds of their sex, marital or civil partnership status, race, gender reassignment, religion or belief, sexual orientation, pregnancy or maternity leave, or in recent times their age.

4. Are there different types of discrimination?

Yes, the law recognises four different types of discrimination including direct and indirect discrimination.    Direct discrimination is where an employee is treated less favourably by reason of the prohibited ground. A Tribunal recently held that an Irish factory worker had been discriminated against when he was continually subject to offensive Irish jokes. The company responded by telling him to take it on the chin and was ultimately sacked for pestering management to deal with the situation. The company was found guilty of direct discrimination and required to pay out a considerable sum in compensation to the employee.   The law also recognises indirect discrimination and this is where an employer applies a ‘condition, criterion or practice’ equally to all employees but it has a disparate impact upon one group. An obvious example is a dress code that dictates that all females must wear skirts. This could indirectly discriminate against Muslim females who are more likely to observe religious/cultural constraints to keep their legs covered. Another example is where an employer insists that a job must be done on a full-time basis which may discriminate against women who are more likely to have care commitments which prevent them from working full-time.

5. Can an employer defend their actions?

An employer may justify certain types of discrimination if it can be shown that being of a particular sex or race is a genuine requirement for the job. For example, where an acting job requires a person of a particular race for reasons of authenticity. With regard to indirect discrimination an employer may seek to defend a particular policy if it can be ‘objectively justified’. This is essentially a balancing exercise between the discriminatory impact of the policy and the need for the policy. For example, a food factory may have a rule which prohibits facial hair for hygiene reasons. A refusal by the factory to employ an orthodox Sikh male who refuses to cut his beard would be an example of an objective justification on hygiene grounds. 

6. Is there any difference between the duties imposed on employers in the private and public sector?

Yes. Employers in the public sector are now under a positive duty to eliminate discrimination and promote equality of opportunity with regard to sex, race and disability.