Discrimination and Equality: Unlawful Conduct

In our latest HR Coffee Break Briefing webinar, Employment Expert & Associate Chris Dobbs looked at equality and discrimination law.

It was the second session on the topic, with this one being focused on the unlawful conduct that is considered discrimination according to the Equality Act.

This is the summary of that webinar. You can watch it back below, or read on for the summary.

You can read the summary of part one, where Chris outlined what the protected characteristics are in discrimination claims, here.

Quick Links

• Direct discrimination
• Indirect discrimination
• Disability specific claims
• Harassment
• Victimisation
• The statutory defence to discrimination claims
• Pregnancy and maternity protections

To preface, the Court’s award system is exactly the same no matter the form of discrimination an individual manages to establish. Direct discrimination claims, for example, won’t payout more damages than indirect discrimination.

Direct Discrimination

Direct Discrimination is essentially treating someone less favourably because of their protected characteristic. In such cases, the discriminatory comments/actions would only be attributable to the protected trait and there wouldn’t be another explanation for them.

Being treated ‘less favourably’ is widely defined. It doesn’t need to be an extreme detriment, just where somebody has not been favoured as a result of their protected characteristic compared to how someone else has been, or would be, favoured.

A person who is directly discriminated against does not need to have the protected characteristic to have been discriminated against.

Direct discrimination can also include “associative discrimination”. For example, if somebody is refused a job because they are the primary carer for an elderly relative, that would be associative age discrimination – despite the applicant not having the protected characteristic.

Indirect Discrimination

Under Section 19 of the Equality Act, a person discriminates against another if that person applies a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic.

Meaning, the individual who is subject to the discrimination has to have the protected characteristic themselves.

Here’s an example of how indirect discrimination works:

1. An employer has a fixed start and end time to their day. Office hours are 09:00 – 18:00
2. They are not prepared to change this under any circumstances.
3. This wouldn’t be direct discrimination, as it is not unfavourably treating people with a specific protected characteristic

The policy here is the working hours. It applies to all staff. It may particularly affect, and be indirectly discriminatory towards, disabled staff or those with childcare commitments. The detriment is either the knock-on effect or the inability to have the job in the first place.

The defence to indirect discrimination

Unlike direct discrimination, indirect discrimination can be permitted where the employer seeks to achieve a legitimate aim in a proportionate way.

If it can be shown that there wasn’t a legitimate aim, or that there was potential for a less discriminatory policy to be put in place and still achieve the legitimate aim, this justification defence will fail.

Disability Specific Claims

Under Section 15 of the Equality Act 2010, a person discriminates against a disabled person if they are treated unfavourably because of something arising in consequence of the disability and the employer can't show that same justification defence.

These are generally established by showing that something is being done, or could be done, which impacts a disabled member of staff negatively and cannot be justified as proportionate.

Section 15 is, in effect, a disability specific indirect discrimination claim. The distinction is that Section 15 claims don’t require a comparison to be made between how the disabled employee is treated and how an employee who is not disabled is treated.

The most common areas where Section 15 claims arise are:

• Rigid sickness absence procedures or trigger points
• Management of neurodivergent staff
• Applications and interviewing

Failure to make reasonable adjustments

Section 20 imposes three duties that employers have an obligation to consider:

• To take reasonable steps to avoid a disadvantage caused to a disabled person by a workplace requirement
• To take reasonable steps to avoid a disadvantage caused to a disabled person by a physical feature (e.g. wheelchair access)
• To reasonably provide auxiliary aids to assist a disabled person overcome a disadvantage (e.g. dictation software, hearing aids)

These obligations are triggered the moment you know or could know about the disability and know or could know about the disadvantage that they're suffering.

A ‘substantial disadvantage’ is defined, within the act, as being ‘more than minor or trivial’.

What might be considered a reasonable adjustment?

• Changes to the workplace
• Changes to working arrangements
• Providing equipment, support mechanisms

An adjustment actually has to remove or reduce the disadvantage.

For the employer, the definition of reasonable is quite broad and the court will consider things like:

• Whether it is practical for you to implement that change
• Whether it is affordable
• And whether it creates a risk to the health and safety of other people or the way they work

The decision as to whether something can or can't be implemented in the first instance is ultimately for you as the employer.

Related: Disability Discrimination in Applications - An Employer's View

Harassment

Under Section 26 of the Equality Act, a person harasses another if they engage in unwanted conduct related to a relevant protected characteristic.

To meet the definition, that conduct must have the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It’s a relatively low test but the feeling of the claimant must be broadly reasonable.

From the point of view of a discrimination claim, there is no need for a comparator for harassment, the employee does not need to have the protected characteristic and the person who is harassing them does not need to have intended to cause offense for a claim to be valid.

Defending claims

It is possible to defend harassment claims in theory, but it is not easy to do because once it's been established that the conduct happened and that it was linked to the protected characteristic; there’s no real defence beyond that.

You can't objectively justify acts of harassment so your only real options for defending it are to prove that:

• The Alleged acts did not happen
• The acts were not connected to a protected characteristic
• It would be unreasonable for the employee to feel the way they did
  • That last point is a difficult one, you would essentially need to prove that the workplace culture is such where ‘banter’ involving protected characteristics is commonplace and that the claimant ‘gave as good as they got’
  • Therefore, proving that the claimant doesn’t actually feel offended or humiliated by the conduct

Related: The Cost of Sexual Harassment - Chris Dobbs discusses

Victimisation

Under Section 27 of the Equality Act, a person victimises another person if they subject them to a detriment because the victim either does a protected act, or the person believes that they have done, or may do, a protected act.

The protected acts are as following:

• Bringing legal proceedings for any other form of discrimination
• Giving evidence or information in connection with proceedings
• Doing any other thing for the purposes of or in connection with this act (e.g. talking about the legal proceedings that they are bringing)
• Making an allegation (whether or not express) that someone has contravened this Act

Related: What is a detriment in a victimisation claim?

The Statutory Defence in Discrimination Claims

There is a statutory defence in discrimination claims that the employer has taken all reasonable steps. Strictly speaking, it's not a defence to the act of discrimination itself but instead a defence to the concept of the employer's vicarious liability.

Essentially, saying that the employer did everything they could to prevent the discrimination from taking place.

These are incredibly difficult defences, as you have to show that you took all reasonable steps including regular up to date, meaningful, engaging equal opportunities training and all sorts of regular reminders and engagement with staff over what does and does not amount to discrimination.

If you unsuccessfully run this defence, you do have a risk of enhanced costs against you. Therefore, I would generally suggest not running this defence unless you are absolutely convinced that you’re able to prove that you took all reasonable steps.

Specific Protections – Pregnancy and Maternity

Section 18 functionally creates a form of discrimination protection for anybody who is during their protected period in relation to pregnancy. It says that they cannot be treated unfavourably because of the pregnancy, an illness suffered by it or because they're asserting some kind of legal right in connection with it.

Beyond that, it is also important in relation to staff who are pregnant, to be aware of:

• Paid Leave & benefits (for both Ordinary and Additional Maternity Leave)
• The distinction between the right to return to the same job and the right to return on no less favourable terms
• Redundancy rights
• The fact that it is an automatic unfair dismissal to dismiss someone who is pregnant
• Risk assessments for pregnant staff (should be regularly reviewed and updated)

Related: Maternity Leave: Rights On Return

Thanks for reading. If you haven’t already, or just want a refresher, you can read part one here.

Upcoming Events

Don’t worry if you missed this webinar, there’s still plenty more to come over the next 12 months as our employment team talk you through the employee lifecycle.

The next one is taking place on Wednesday 6^th March, where Chris will be looking at Capability and Performance Management.

Although our February Employment Law Update is now sold out, we have added a second date. Join us on 7^th March for an update on all things employment law here.

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