We are dealing here with the Equality Act 2010 and Discrimination at Work.  We are also explaining the link between harassment and bullying which can fall within both civil and employment jurisdiction.  We deal with discrimination in goods and service provision here.

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If an employer unlawfully discriminates against or harasses a job applicant or employee, it will be liable for its actions.   Similarly, other bodies can be primarily liable for discriminating against protected individuals: for example, training providers can be liable for discriminating against those seeking or undertaking vocational training.

 

Employers may be liable for the unlawful actions of their employees or agents. Claims may also be brought against the manager, fellow employee or agent who was responsible for the discrimination, victimisation or harassment in question.

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The EqA 2010 defines “employment” as employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.  Those categories included are:

 

• Employees within the meaning of section 230(1) of the Employment Rights Act 1996 ("ERA 1996").

• Workers within the meaning of section 230(3) of the ERA 1996.

• A wider category of individuals who are self-employed, provided that their “employment” contract obliges them to perform the work personally: in other words, if they are not permitted to sub-contract any part of the work or employ their own staff to do it.

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Under the EqA 2010 there are nine protected characteristics where discrimination is concerned:

 

• Age 

• Disability

• Gender reassignment 

• Marriage and civil partnership

• Pregnancy and maternity - see also Family & Dependant Rights here

• Race 

• Religion or belief 

• Sex 

• Sexual orientation 

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Part 5 of the EqA 2010 protects a wide range of individuals within the field of work (employment, occupation and vocational training):

 

• Job applicants and employees are protected against discrimination by their potential employer, employer or former employer.

• Contract workers, including agency workers, are protected against discrimination by the end-user of their services.

• Police officers and applicants to join the police force are protected against discrimination by the chief constable, police authority or other body.

• Partners and those seeking partnership in a firm are protected against discrimination by the firm (or the persons proposing to set up a firm).

• Members and those seeking to become members of an LLP) are protected against discrimination by the LLP (or the persons proposing to set up an LLP).

• Barristers are protected against discrimination by members or clerks of chambers in which they are tenants or pupils (or to which they have applied for tenancy or pupillage), or by instructing solicitors.

• Advocates, including trainee advocates or members working in shared premises, and people seeking to be member, are protected against discrimination by practising advocates or their clerks.

• Office holders and applicants for an office are protected against discrimination by a person with power to recommend, make or terminate their office or to determine their conditions.

• Those seeking or holding professional or trade qualifications are protected against discrimination by the relevant qualifications body (for example, the General Medical Council or the Public Carriage Office).

• Those seeking or undertaking vocational training (including work experience placements) are protected against discrimination by the training provider. Further, people using employment agencies or related careers guidance services are protected against discrimination by the agency or service.

• Members of trade organisations and those seeking membership are protected against discrimination by the organisation.

• Members of local authorities are protected against discrimination at the hands of the local authorities in relation to providing access to facilities such as training which relate to the carrying out of their official business.

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The EqA 2010 does not just protect individuals, a limited company that was a member of an LLP has been able to bring a claim against the LLP alleging it had suffered direct age discrimination because of the age of its principal shareholder and director.  The same could apply to corporate partners in a partnership, and corporate members of trade associations.

  

There are various types of discrimination and other unlawful conduct set out in the EqA 2010 that apply to most (and in some cases all) of the protected characteristics:

 

          Direct discrimination (section 13).

          Discrimination arising from  disability (section 15).

·         Indirect discrimination (section 19).

          Duty and failure to make adjustments (section 20) & (section 21)

·         Harassment (section 26).

·         Victimisation (section 27).

·         Instructing, causing, inducing and helping discrimination (sections 111 and 112).

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Direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.  Failure to make reasonable adjustments is form of direct discrimination.  Every employer has a duty to make adjustments, however, as long as they take steps to remove any barriers making it difficult for a disabled employee they will satisfy this requirement.  It is also unlawful to discriminate against an employee for something that is connected to disability which is known as discrimination arising from disability.

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Indirect discrimination is concerned with acts, decisions or policies, which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic. Where such an action disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified.

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Harassment has three definitions:

• The general definition of harassment “related to” a protected characteristic, which applies to all protected characteristics (other than maternity and civil partnership, and pregnancy or maternity), harmonises the definitions found in the previous discrimination legislation.

• Conduct of a sexual nature.

• Less favourable treatment because of an employee’s rejection of or submission to harassment of a sexual nature or harassment related to sex or gender reassignment.​

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The general definition of harassment is where A harasses B if they engage in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:

 

• Violating B’s dignity, or

• Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

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In deciding whether conduct shall be regarded as having the required effect, the following must be taken into account:

 

• B’s perception.

• The other circumstances of the case.

• Whether it is reasonable for the conduct to have that effect.

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Conduct of a sexual nature arises where A harasses B by engaging in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to above within the general definition of harassment.

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Where the circumstances are that there has been a rejection of or submission to harassment

A harasses B if:

 

• A or another person engages in unwanted conduct that is of a sexual nature or that relates to gender reassignment or sex.

• The conduct has the purpose or effect referred to above within the general definition of harassment.

• Because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

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A civil claim for harassment can also be brought in the civil courts under the Protection from Harassment Act 1977.

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Victimisation

The EqA 2010’s victimisation provisions protect employees who do (or might do) protected acts such as bringing discrimination claims, complaining about harassment, or becoming involved in another employee’s discrimination complaint.   

 

Victimisation is usually alleged to have been committed by an employer that is already the subject of a discrimination complaint by a current or former employee, but this need not always be the case.   An example may be that a prospective new employer refuses to employ someone who has given evidence against a previous employer in a discrimination case.

 

Victimisation occurs where A subjects B to a detriment because either:

 

• B has done a protected act.

• A believes that B has done, or may do, a protected act.

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The following protected acts are listed in section 27(2) of the EqA 2010:

 

• (a) Bringing proceedings under the EqA 2010.

• (b) Giving evidence or information in connection with proceedings under the EqA 2010, regardless of who brought those proceedings.

• (c) Doing any other thing for the purposes of or in connection with the EqA 2010.

• (d) Alleging (whether expressly or otherwise) that A or another person has contravened the EqA 2010.

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Discrimination in employment is generally prohibited. However, in certain circumstances, an employer (or other respondent) may have a defence to an act of direct, combined or indirect discrimination that is otherwise unlawful.

 

The following exceptions, which apply across most of the discrimination strands, are considered below:

 

• Occupational requirements.

• Positive action.

• Statutory provisions.

• National security.

• Providing benefits to the public.

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There are also a number of exceptions set out in the EqA 2010 that are specific to one protected characteristic.

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In a successful discrimination claim, a tribunal may make one or more of the following orders:

 

• A declaration of the rights of the parties.

• An order that the respondent pay compensation to the claimant.

• An appropriate recommendation as to what steps the respondent should take to reduce the adverse effect of discrimination on the claimant.

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Bullying and harassment in the workplace

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Bullying and harassment are linked common problems affecting employees at work. But both bullying and harassment towards other employees is unlawful, although bullying has no specific stand alone legislation , the law states makes that all employees have the right to work in a safe environment, and the right as above, not to be harassed.

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An employer is responsible for creating and maintaining a safe place to work which includes ensuring they have safe systems in place, and appropriate procedures to keep the workplace free from bullying, intimidation and harassment. Employees should be protected by a combination of employers’ policies in line with legislation. We come across many organisations who do not either have policies in place, or if they do, they do not follow them, which can be at the cost of the employee 's mental health and a financial and reputational cost to employers.

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If you or someone you know is affected by bullying and harassment, we have experience to advise and support you.  If you are an employer who is unsure how to deal with issues of bullying an harassment we can provide guidance on correct policies and procedures to follow.

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Bullying includes the following behaviours:

• offensive, intimidating, malicious, or insulting behaviour;

• abuse of authority which violates the dignity of an individual or a group of people;

• creating a hostile environment against an individual;

• the undermining, humiliation or injury of an individual.

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The bullying does not need to relate to a protected characteristic (discussed above) but unless it does, or is of a sexual nature, it is not prohibited by the Equality Act 2010.  It can however, fall within civil jurisdiction under the Protection from Harassment Act, contractual and tort obligations for trespass to the person and negligence by an employer by failing in their duty of care to their employees. 

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What compensation can be claimed?

Compensation is nearly always awarded in successful discrimination cases.   However, in cases of unintentional indirect discrimination, the tribunal must first consider whether making a declaration or recommendation (or both) would be enough to remedy the situation.  Once it has done so (and, if appropriate, made such a recommendation and/or declaration), it may go on to make an order for compensation if it considers it just and equitable to do so.

 

In determining the amount of compensation, the following general principles apply in employment tribunals:

 

• Compensation can be awarded for financial losses (including loss of earnings, pension, and benefits in kind and any out-of-pocket expenses) and non-financial losses (including injury to feelings, personal injury and aggravated damages).

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• Compensation is based on the tortious measure of damage, and so should be calculated so as to put the claimant in the position they would have been in if the unlawful discrimination had not taken place.

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• Claimants are required to take reasonable steps to mitigate their losses.  This means for example finding alternative employment to reduce loss of earnings.

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• There is no upper limit on the amount of compensation that can be awarded.  The scheme used to assess compensation is known as "Vento awards" - see here.

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• Compensation can be awarded against the employer and against any individual respondents, such as other employees.

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We represent many clients in all discrimination and bullying claims and have considerable experience in these types of claims coming to trial and settling before trial.  We encourage our clients to explore the options to dispose of a claim, and can advise both employer and employee on the best options to take.