Characteristics of discrimination
The Equality Act 2010 protects your employees from discrimination in the workplace. The act covers 8 protected characteristics; Age, Disability, Gender Reassignment, Marriage and Civil Partnership, Race, Religion or Belief, Sex and Sexual Orientation.
Direct and indirect discrimination
Discrimination can be direct or indirect. The act describes direct discrimination as follows:
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others; and Indirect discrimination is described as:
A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
Whilst direct discrimination cannot justifiable indirect discrimination can. The legal terminology for this is ‘objective justification’.
The Equality Act says discrimination can be justified if the person who is discriminating against you can argue that it’s a ‘proportionate means of achieving a legitimate aim’.
What is a legitimate aim?
The aim must be a genuine or real reason that is not discriminatory, therefore legitimate. Some examples of legitimate aims include the health and safety of individuals, running an efficient service and requirements of a business.
What is meant by proportionate?
This means that the discriminatory impact must be balanced by the importance and benefits of the aim, being appropriate and necessary. There should also be no reasonable, less discriminative alternative. It is important to note that economic reasons alone cannot justify discrimination.
A recent case presented a former Oxford University Professor, John Pitcher, who was forced to retire at 67 years of age and he lost his claim for unfair dismissal and age discrimination. The university required academics to retire at the age of 67 and since 2017, were required to retire the September prior to their 69th birthday. The university’s Employer-Justified Retirement Age policy was found to be legitimate since the policy hoped to “promote inter-generational fairness and maintain opportunities for career progression for those at particular stages of a career”.
Therefore, it is important to ensure your policies are reviewed to avoid risks of discrimination or to ensure your policy has a justifiable defence against discrimination if it has the potential to contravene any of the protected characteristics under the Equality Act.
For further guidance and support on discrimination, please call the employment advice line or contact us here.
