Discrimination

Direct discrimination involves less favourable treatment of the person concerned based on characteristics attributable to gender, disability, religious belief, ethnicity, political opinions, etc. An assessment is made by comparing the person in the same material circumstances with a different characteristic, especially in the context of disabled persons.

Discrimination must arise for a reason related to the person’s disability (given the greater difficulty in making a direct comparison). The 2002 regulations were amended to prohibit less favourable treatment on the ground of a person’s disability.

In deciding whether there has been direct discrimination, the Courts and Tribunals ask whether the complainant would have received the same treatment from the defendant but for the relevant difference, e.g. ethnicity, religious belief, gender, etc. The reasons and motives behind the alleged discrimination do not apply.

Direct discrimination cannot be justified. The Disability Discrimination Act allows less favourable treatment if it is material to the circumstances of the case and is substantial.

Under racial discrimination legislation, direct discrimination occurs when a person treats the alleged victim less favourably than he would treat other persons. The victim need not suffer less favourable treatment because of his race.

Direct discrimination may not be intentional in the sense of the person wanting a particular result. If a person is forced to take a particular course of action by pressure from trade unions, employers, etc., they may nonetheless have committed unlawful direct discrimination. Adherence to the fair employment code of practice will assist in claims against discrimination, and the general use of objective criteria, trained interviewers, and procedures will assist in showing the absence of direct discrimination.

Direct discrimination in employment will generally be based on persons having the characteristic being less suitable on a generalized basis.

Indirect discrimination seeks to prohibit rules and practices that, on the face of them, are neutral and do not appear discriminatory. However, in effect and application, unlawful discrimination is outlawed. Disability discrimination deals with this issue slightly differently, as in the case of direct discrimination.

Indirect discrimination occurs when the claimant has been the subject of a requirement, condition, criteria, and practice that is applied equally to all and appears equal. However, it may be discriminatory because it adversely affects one group more than others.

The original statutory methods for assessing indirect discrimination look at whether the proportion of persons of that category, e.g., race, religion, political opinions, etc., can comply with the requirement or condition is considerably smaller than the proportion of persons not of that race, religion, opinion, etc.

Indirect discrimination occurs when there is a significant difference unless the condition can be justified. Indirect discrimination is prohibited by all the antidiscrimination legislation except the Disability Discrimination Act. It deals with the matter differently.

A complainant must have suffered a detriment. Historically, the Courts took the view that a difference of 20% was material for this purpose. However, this is not an absolute rule, and the Courts may decide that a difference, whether below or above 20%, is or is not considerable.

Under the EU concept of indirect discrimination, which applies in respect of legislation giving effect to EU Directives, discrimination arises where the condition, restriction, practice, etc., puts persons of the same race, sexual orientation, etc., at a particular advantage or disadvantage when compared to others. If the defendant can show that the condition, restriction, or practice is pursuing a legitimate aim in a proportionate manner, this may justify it. It must be a genuine purpose or provision, practice, or criteria, and the manner in which it is implemented must be reasonable.

Indirect discrimination is discerned when the prohibited ground has been the true basis of the decision. This need not be conscious. The Courts and Tribunals make inferences based on facts and circumstances.

Discovery is available to Tribunals. This may uncover documents and confidential information regarding, for example, a selection process. Under fair employment legislation, the applicant may serve a prescribed form requiring reasons for doing any act or about any matters. Replies or failure to reply may be evidence against the defendant.

Tribunals and Courts will infer indirect discrimination where a better-qualified person of a different category has been passed over, not appointed, etc. The employer will need to justify the decision on non-discriminatory grounds. The reasons put forward must be legitimate, and the criteria must be important in the context of the position.

It also constitutes discrimination to knowingly aid another in the commission of unlawful discrimination.An employee or agent for whose act the employer or principal is liable is deemed to aid the doing of an act by the employer or principal.

A person does not knowingly aid another to do an unlawful act if they act in reliance on a statement made to them by that other that, by reason of the legislation, the act would not be unlawful, and it is reasonable for them to so believe. It is unlawful to make a statement which is false and misleading in that regard.

Generally, an employer is vicariously liable for the acts and omissions of their employees, whether or not specifically approved. Provided they are within the scope of employment, the employer may be liable. It is a defence for an employer to prove that all steps reasonably practicable were taken to prevent discriminatory acts from taking place.

Anything done by a person in the course of employment is treated as done by their employer, as well as by them, whether or not it was done with the employer’s knowledge or approval. Anything done as an agent of another person with the authority of that other is treated as done by that other as well as by the agent.

An employer must, therefore, train staff in antidiscrimination matters and develop policies and procedures to deal with allegations of discrimination. It will usually be necessary to show that they have taken all reasonably practicable steps to prevent the commission of discriminatory acts.