A legal guide to sex and race discrimination in the workplace
As with the other protected acts, discrimination on the grounds of sex and race are covered under the Equality Act 2010.
There are two main concepts of discrimination – direct discrimination and indirectdiscrimination. Direct discrimination is treating somebody less favourably because of their sex or race.
Indirect discrimination takes two forms. One involves applying a provision, criterion or practice (PCP) equally to all, but which puts or would put one sex or race at a particular disadvantage when compared to the other; which does in fact put the individual at such a disadvantage; and which is not a proportionate means of achieving a legitimate aim. For example, a condition that job applicants have blond hair would discriminate against those of African or Indian races.
The second form of indirect discrimination is where there is a requirement or condition which applies equally to all but it is such that a proportionately smaller number of women than men, or of one race compared to others, can comply with it; which is not justified; and which is detrimental to the women or ethnic minority.
Discrimination may occur in any of the following ways
- In the arrangements the employer makes for the purpose of determining who should be offered employment; in the terms on which it offers that employment;
- By refusing or deliberately omitting to offer that employment;
- In the way the employer affords access to opportunities for promotion, transfer or training, or to any other benefit, facilities or services, or by refusing or deliberately omitting to afford access to them;
- By subjecting them to a detriment; or
- By dismissing them
A person may also bring a claim of victimisation if they have been treated less favourably because they have:
- Brought proceedings in the past (whether against the employer or a third party)
- Given evidence or information in connection with such a claim; or
- Alleged that the employer (or a third party) has done an act which would amount to a breach of the above legislation
Qualifications for bringing a claim
There are no qualifying periods required to bring a claim. Indeed, many claims of discrimination are brought by job applicants.
It is unlawful to treat someone less favourably because they may be gay or lesbian. The Equality Act 2010 replaced the Employment Equality (Sexual Orientation) Regulations 2003 which prohibits such discrimination, and also prohibits victimisation and harassment.
- No longer encompasses pregnancy and maternity discrimination, gender reassignment or marriage and civil partnership, they are now protected characteristics in their own right. Please click here for more information
A crucial difference between direct and indirect discrimination is the existence of the justification defence. An employer cannot justify direct discrimination (unless on the grounds of age) but it can seek to do so to defeat a claim of indirect discrimination. The justification must be based on objective grounds such as economic or administrative efficiency.
Direct discrimination may however be defended on the grounds of the “genuine occupational qualification” defence. The most common examples of genuine occupational qualification are hiring waiters of a particular race for restaurants or for authenticity when acting – it will not be discriminatory to insist on a man to play Hamlet.
There is no upper limit for a compensatory award in discrimination cases. An award of compensation should comprise all loss directly caused by the act of discrimination including past and future loss of earnings, loss of opportunity and injury to feelings. There are guidelines for awards for injury to feelings of between £600 and £30,000 but these are for guidance only. Since claims for losses are unlimited this sometimes results in very large claims from, for instance, high flying female professionals on large salaries who may be claiming that, through being discriminated against, they are unable to earn these amounts again in future employment.