Employment legal advice on protected characteristics

The largest piece of legislation to hit the statute books in discrimination for many years is the Equality Act 2010, which brings under one heading all types of discrimination and harmonises the discrimination legislation.  It covers what are now known as the “protected characteristics” of age, disability, gender reassignment, marriage and civil partnership, pregnancy and paternity, race, religion and belief, sex and sexual orientation.

Direct Discrimination

A directly discriminates against B if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. The direct discrimination does not have to refer to the protected characteristic of any particular person, and cannot be justified.

Association and Perception Discrimination

The Act covers less favourable treatment of an individual because he or she associates with, or is wrongly perceived to have, a protected characteristic. Associative discrimination is most likely to be relevant to those caring for a disabled relative where they themselves are not disabled but, for example, they take a lot of time off to care for the person, and are treated less favourably as a result. This does not apply to marriage or civil partnership.

Indirect Discrimination

Indirect discrimination involves provisions, criteria or practices that apply to a group of people, which are not intended to discriminate, but which cause a particular disadvantage to one individual, and a group of people, with a protected characteristic. It now covers disability and gender reassignment. An employer may be able to avoid liability if it can show the PCP to be a proportionate means of achieving a legitimate aim.

Harassment

Harassment is where a person (A) harasses another (B) where A engages 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.

Conduct can amount to harassment if it is related to a protected characteristic and does not have to be on the grounds of it.

Victimisation

A victimises B if A subjects B to a detriment because B does, or A believes that B has done, or may do, a protected act. The protected acts are defined in the Equality Act.

Positive Action in Recruitment and Promotion

The Equality Act has widened the scope of positive actions an employer can take in connection with recruitment and promotion to tackle disadvantage and under-representation in the workplace.

Employers can now take proportionate measures to train or encourage under-represented groups to apply for jobs, or to overcome a perceived disadvantage or to meet specific needs based on a protected characteristic.

It will apply where an employer believes that persons with a particular protected characteristic are disadvantaged or that their presence in the workplace is disproportionately low. The employer will be able to treat a person with the relevant characteristic more favourably than others in recruitment or promotion, as long as the person with the relevant characteristic is “as qualified as” those others and the employer does not have a policy of treating such people more favourably.


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“What the team is known for: Handles a full range of employment matters including advice in relation to employee shareholder schemes, business restructuring and employment litigation. Strengths (Quotes mainly from clients): “They are a brilliant team and great support for businesses. They’re also very friendly and approachable.” Work highlights Advised an individual in an appeal at the Employment Appeal Tribunal brought by Oxfordshire County Council, who appealed an Employment Tribunal judgment that the individual had been subjected to unlawful whistle-blowing detriments. Notable practitioners: Mark Emery (Band 3) has experience advising claimants and respondents on employment litigation, as well as working with businesses on general advisory matters. Sources say he “provides excellent advice and documentation.” Lauren Harkin (Associate to watch) is known among her clients for her “excellent understanding of employment law.” She is experienced in defending Employment Tribunal proceedings involving all aspects of discrimination. Malcolm Gregory is a Recognised Practitioner.” Chambers 2017 Thames Valley

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“At Royds Withy King, department head Malcolm Gregory handles employee shareholder schemes, restructuring, pension cap applications and TUPE matters, while Richard White predominantly acts for employers and has strength in tribunal claims.” Legal 500 2016 South West

“Royds Withy King’s highlights included successfully representing an in-house solicitor in a disability discrimination and unfair dismissal claim against a former employer. Practice head Malcolm Gregory is recommended alongside tribunal and mediation expert Mark Emery.” Legal 500 2016 South East


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