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Discrimination claims – Sept 2017

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Discrimination claims are something that all employers need to be mindful of – regardless of the length of continuous service an employee has had. While an employee must have had 2 years continuous service to be able to raise a claim of unfair dismissal against their employer, there is no such minimum term of service needed for an employee to raise a discrimination claim. Claims may in fact be made even before an employment relationship has been formally entered into; for instance, if a person’s job application was overlooked and they believed they were denied an interview based on one of the “protected characteristics” of discrimination, they could bring a claim, despite not being an employee.

Discrimination claims are covered by the Equality Act 2010, which outlines several “protected characteristics” on the basis of which it is unlawful to discriminate. These are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation. There are 4 main types of discrimination under the Act: direct, indirect, harassment and victimisation. Direct discrimination is often more straightforward to identify; for instance, if an employee is terminated because they are pregnant. Indirect discrimination may be less obvious; for example, if a person is subjected to discrimination because they are unable to work after mid-afternoon on Fridays, the reason being because of their Jewish religion, then this could amount to indirect discrimination. If the reason for any less favourable treatment has a basis in one of the protected characteristics, then it could be considered discrimination.

There are some limited circumstances where discrimination may be lawful, for instance where a particular protected characteristic is an “occupational requirement” for the job. This could be, for example, the specification that a chaplain at a Catholic church is in fact Catholic, or that an airline pilot does not have epilepsy. These are deemed legitimate reasons for the discrimination (based on religion and disability, respectively) and are thus often considered to be lawful.

An employee may make a claim of discrimination at any stage and, as mentioned, even before the employment relationship has formally commenced. As a result, it is very important for employers to have regard to any potential claims that may arise. If an employer is aware that an employee has a disability for example, they are required to make any “reasonable adjustments” that may be necessary for an employee to carry out their job – such as rearranging seating to accommodate a wheelchair.

To protect themselves against claims of unlawful discrimination, it is important for an employer to be mindful of the protected characteristics, and to promote equality and diversity in the workplace. Including an Equality and Diversity clause in the company policy, which clearly advises that the recruiting and employment procedures of the company are to embrace a diverse range of people and to not discriminate, as well as to educate staff on the importance of equality and diversity in the workplace, is an excellent way for an employer to minimise the risk of a discrimination claim. FTA Law are experts in the area of both defending discrimination claims and preventing claims, and have successfully handled numerous cases in this area.

The team at FTA Law provides advice to clients across the commercial and healthcare sectors with many of our instructions coming from referrals from long standing clients and industry contacts.

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