#13956 - Indirect Discrimination Harassment And Et1 3 Forms - Employment Law

• Unlawful discrimination in the employment field against job applicants and employees is prohibited by ss 39 and 40 of the Act.

Common employment practices which may indirectly discriminate employees on the grounds of religion or belief:

1. Dress codes – imposing a dress code on all employees may cause problems for employees who wish to adopt a particular form of dress for religious reasons

2. Hours of work and rest breaks – members of some religions are required to pray at certain times and/or observe the Sabbath from a particular hour on a Friday. Imposing scheduled rest breaks or a requirement to work late in the evening may indirectly discriminate against members of certain religions

3. Working days and holidays – by placing restrictions on when employees can take holiday may conflict with their religious holidays and may therefore indirectly discriminate on the grounds of religion or belief

4. Canteen and food storage facilities – some religions have strict dietary rules so any arrangements for food storage should be made with this in mind

5. Recruitment – word of mouth recruitment where the existing workforce is largely of a particular religion or belief could indirectly discriminate against persons of other religions or beliefs

• Direct discrimination (s.13)

• Combined discrimination (s. 14)

• Claims related to all the protected characteristic except:

1. pregnancy and maternity

2. Marriage/civil

• Only for combinations of two of the characteristics

• Not clear when the claim appropriate

• Acts explanatory note is should be make ‘where a single-strand approach may not succeed’

• Comparator needed

• Will the comparator have to reflect both protected characteristics

  • Indirect discrimination (s.19)

  • Harassment (ss.26 & 40)

  • Victimisation (s.27)

s.19 Indirect discrimination occurs when there is equal treatment of all groups but the effects if the provision, criterion or practice imposed by an employer has a disproportionate adverse impact on one group, unless the requirement can be justified

(1) 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.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

• Once, you have established an unlawful act you must then decide whether there has been “indirect discrimination” based on a protected characteristic:

• Age (s.5)

• Disability (s.6)

• Gender reassignment (s.7)

• Race(s.9)

• Religion or belief (s.10)

• Sex (s.11)

• Sexual Orientation (s.12)

1. The respondent must apply a Provision, Criterion or Practice to all persons irrespective of protected characteristic.(PCP)

• Provision, criterion or practice – covers both formal/informal working practices. It can be a contractual provision (essential) or simply a desire of the employer.

‘s.19 Indirect discrimination occurs when there is equal treatment of all groups but the effects if the provision, criterion or practice imposed by an employer has a disproportionate adverse impact on one group, unless the requirement can be justified.

• In this case the employer has applied a criterion or practice to all [applicants for this post/persons], that is, it needs them to [work late on Fridays/late shift].

• If [name] is to succeed, [she/he] will need to show that the provision puts [THE GROUP] at a particular disadvantage when compared to [other applicants/men/employees] and that provision put [him/her] at a disadvantage.

• As persons of the [GROUP] are unable to [work late on Fridays during the winter months] they are unlikely to [be appointed to the post/be able to work], as she [was not appointed/cannot work those hours], it would appear that the provision put [NAME] at a disadvantage.’

2. The provision must put persons of a protected characteristic at a particular disadvantage when compared with others.

• Particular disadvantage : Claimant must show that the provision is to the detriment of his or her group

• Establishing a “pool” of comparison – The claimant must establish a “pool” of persons that are affected by the provision. This could be the entire workforce, all applicants for the job, etc.

• Ultimately it is the tribunal who decides on the correct pool.

• What to do with pool? - The claimant then calculates how many of those within the “pool” (Group 1) who are of the same sex, race or age as the claimant can comply with the provision. You compare this number with those who are not the same sex or race as claimant (Group 2):-

London Underground v Edwards

1. If there is a difference of more than 5% - there is indirect discrimination.

2. If there is difference of less than 5% - there is no direct discrimination, except where sociological evidence suggest otherwise.

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