When recruiting employees, whether at work or in the home, it's very important that you, as an employer, comply with the discrimination laws, which are laid down in legislation.
No matter whether you're hiring staff through employment agencies, job centres, careers offices or schools, you must not discriminate on the grounds of sex (including gender reassignment), sexual orientation, race, marital status, disability, membership or non-membership of a trade union, religion or religious belief and age.
Under employment law, you must not advertise vacancies, select interview candidates or offer employment in a way that discriminates on these grounds.
And you must not give instructions nor bring pressure to discriminate in any of these ways.
Any decision not to appoint a woman on the grounds that she is pregnant or on maternity leave is likely to be found to be discriminatory against sex.
Sex discrimination and discrimination on the ground of marriage
Under the Sex Discrimination Act 1975 (SDA) discrimination on the grounds of sex or marriage is forbidden at every stage of employment (i.e. advertising vacancies, engagement of employees, promotion, training and other opportunities, and dismissal).
The Sex Discrimination Act protects not only individuals who are employees but also individuals working under a contract for services and partners in a business partnership. Other organisations, including trade unions, trade or professional associations and employment agencies must also observe the provisions of the SDA.
If an employee or job applicant feels that they have been discriminated against on any of these grounds, they can raise a complaint with the Commission for Equality and Human Rights or an employment tribunal.
In deciding whether discrimination has occurred, the position of the person allegedly discriminated against is compared to that of a person of similar skill and qualification. The intention or motive of the alleged discriminator is irrelevant. The Sex Discrimination Act protects males as well as females.
Employer responsibility for sex discrimination
Under the Sex Discrimination Act, you, as an employer, are liable for anything done by your employees in the course of their employment, whether or not it was done with your knowledge or approval. You must take responsibility for preventing discrimination at work but it is a defence if you can prove that you took such steps as were practicable to prevent an employee from doing a certain act.
If you wish to rely on this defence, you must show that you have taken positive steps to address the possibility of discrimination occurring in the workplace. For example, you should introduce and adhere
to an equal opportunities policy which incorporates a sexual and racial harassment policy.
All your employees should be aware of such policies and be given training in their obligations not to discriminate. Disciplinary action should be taken against those who do discriminate.
Under employment law, race discrimination is made unlawful by the Race Relations Act 1976 (RRA), which forbids less favourable treatment of individuals on racial grounds at every stage of employment.
Like the Sex Discrimination Act, the Race Relations Act protects not only individual employees but also individuals working under a contract for services and partners in a partnership (where the partnership consists of six or more partners).
In deciding whether discrimination has occurred in a sex discrimination claim, a comparison is made between a female employee and a male employee in equivalent circumstances to decide whether the treatment of one is less favourable.
In a race discrimination claim, the comparison is made between the person of the racial or ethnic group and a job applicant or employee who is not of that ethnic or racial group, but whose circumstances are the same, similar or not materially different.
The burden of proof in race discrimination claims differs slightly to the burden of proof in sex discrimination claims. The individual complaining of race discrimination must establish the case and then the employer has to justify the alleged discriminatory act. If no explanation is forthcoming or an unsatisfactory explanation is provided, then the employment tribunal is entitled to infer that discrimination did, in fact, take place.
Employer responsibility for race discrimination
The same principle applies under the Race Relations Act as to the Sex Discrimination Act. If you want to rely on this defence, regard will be given to whether you have issued a written policy on race discrimination to employees, whether training has been given and whether disciplinary action has been taken against those guilty of race discrimination.
The Disability Discrimination Act 1995 (DDA) protects people with disabilities against discrimination. Breach of the Disability Discrimination Act can result in a complaint to an employment tribunal, regardless of the length of service and with no limit to the amount of compensation.
The main consequence of the Disability Discrimination Act is that it's unlawful for you, as an employer, to discriminate against a disabled person – or someone who has been disabled in the past – in recruitment, terms and conditions of employment, promotion, training (or other benefits), dismissal or by subjecting them to any disadvantage.
It's important that the term ‘employees’ is widely interpreted to include the self-employed and those engaged under a contract of service or apprenticeship (as it is with other discrimination legislation).
What is disability discrimination?
A disability is defined in this context as a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Such a broad definition includes learning disabilities, mental illnesses (if recognised by a respected body of medical opinion), impairments which come and go if the actual effect is likely to recur (e.g. rheumatoid arthritis) and severe disfigurements.
People with progressive conditions are covered from the moment the condition leads to impairment of their ability to carry out day-to-day activities. To be long term, the condition must not be of a temporary nature and must have lasted 12 months or more, or be likely to last 12 months or more. The definition specifically excludes some impairments, such as alcohol or drug addiction, hayfever and self-disfigurement (i.e. tattoos).
Stress, which affects so many people nowadays in many different ways, will not, on its own, amount to a disability. But if the stress is or becomes sufficiently serious to be a clinically recognised stress-related illness, this may amount to a disability within the Disability Discrimination Act.
Sexual orientation discrimination
The Employment Equality (Sexual Orientation) Regulations 2003 forbids sexual orientation discrimination at every stage of employment. Protection is given not only to individuals who are employees but also to a wider category of individuals including those working under a contract for services and partners in a business partnership.
Note that when employment relationships have come to an end, the individual is still protected provided the discrimination arises out of, and is closely connected to, the employment relationship; the most obvious example would be where a former employer gives a discriminatory job reference.
Definition of sexual orientation
Sexual orientation is defined as meaning ‘a sexual orientation towards persons of the same sex, persons of the opposite sex, or persons of the same sex and of the opposite sex’. This means that people are protected from discrimination whatever their sexual orientation. The law doesn't protect individuals against discrimination relating to particular sexual practices or fetishes.
Employer responsibility for sexual orientation discrimination
When defending such a claim, regard will be given to whether you have issued a written policy of sexual orientation discrimination to employees, whether training has been given and whether disciplinary action has been taken against those guilty of sexual orientation discrimination.
Discrimination on the grounds of religion or belief
The Employment Equality (Religion or Belief) Regulations 2003 forbids such discrimination at every stage of employment. As with other forms of discrimination, protection covers more than just employees; it protects individuals when the employment relationship has come to an end provided the discrimination arises out of, or is closely connected to, the employment relationship.
Definition of religion or belief
Religion or belief is defined as meaning ‘any religion, religious belief or similar philosophical belief’. It's clear that people who belong to established religious traditions, such as Muslims, Jews and Catholics,will be protected by this law.
But it's not clear whether non-conventional faiths or beliefs are covered, such as humanists, atheists or Rastafarians. As the law develops, the courts and tribunals will provide guidance, but it's recommended that the following factors are considered when deciding on what is a religion or belief:
Political opinion or belief is not included within the definition.
Employer responsibility for religious discrimination
Again, regard will be given to whether a written policy of religion or belief discrimination has been issued to employees, whether training has been given and whether disciplinary action has been taken against those guilty of religion or belief discrimination.
The Employment Equality (Age) Regulations 2006 forbids discrimination at every stage of employment. As with other forms of discrimination, protection covers more than just employees; it protects individuals when the employment relationship has come to an end provided the discrimination arises out of, or is closely connected to, the employment relationship.
Employer responsibility for age discrimination
The same principle applies as previously described in relation to the Sex Discrimination Act 1975 (SDA). For an employer relying on this defence, regard will be given to whether a written policy of age
discrimination has been issued to employees, whether training has been given and whether disciplinary action has been taken against those guilty of age discrimination.
The discrimination laws are discussed in further detail in our Employment Law Made Easy Guide, written by employment lawyer Melanie Slocombe.
Published on: June 1, 2010