Discrimination Grounds
Anti-discrimination legislation takes the same broad approach, prohibiting four particular types of discrimination: direct discrimination, indirect discrimination, harassment, and victimization. It provides for tribunals that hear complaints on these bases.
Under the Disability Discrimination Act: Where an employer or service provider makes an arrangement and has a physical feature of premises occupied that places the disabled person at a substantial disadvantage compared to persons without the impairment/disability, that employer or service provider must take reasonable steps to prevent the arrangement having that effect. This is a so-called reasonable adjustment.
What is reasonable is determined by reference to the circumstances and a number of factors, including the practicality and cost of the adjustment.
Making reasonable adjustments can apply to any range of changes and are directed towards facilitating access to the workplace or to goods, facilities, or services. It may vary from minor, relatively inexpensive adjustments to providing ramps, sign language interpreters, etc. It is necessary to consider the physical and mental impairment and then to come up with ways of altering the terms of employment or the manner in which goods, facilities, etc., are provided to enable the disabled person to participate.
The question of whether the reasonable adjustments have been complied with is subjective, taking into account the employer or service provider’s natural or imputed knowledge of the disability, its extent, and effects. Where the employer or service provider fails to make reasonable adjustments, he is presumptively found to have acted unlawfully. There is a defence of justification.
In determining justification, it is necessary to show that the employer or service provider has made all reasonable inquiries of the disabled person, sought medical advice, and carried out a reasonable assessment of the condition. If he was unaware of the true extent of the disability and its effects, the failure to make a reasonable adjustment may be justified.
Victimisation is where a person is subject to less favourable treatment directly due to asserting legal rights under antidiscrimination law. It may arise when the complainant is treated less favourably because the defendant believes or suspects that he has done or intends to bring proceedings or make allegations that another has breached legislation or has exercised rights under the relevant legislation.
It applies where the action taken against the complainant takes place because it is known or believed that he has made use of antidiscrimination legislation, not for another reason. Victimisation need not be consciously undertaken. If it is shown that he has been victimised consciously or unconsciously for the above reason, there has been victimisation.
Courts have interpreted the concept of harassment in legislation on discrimination. European Directives later introduced a specific prohibition on harassment. Harassment is now defined as unwanted conduct, which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the person. Conduct may be harassment if it might reasonably be regarded as having that effect. Regard is to be had to the perception of the harassed person. The test is objective, but there is some subjective element in terms of sensitivity.
A disabled person under the Disability Discrimination Act is a person with a physical or mental impairment that has a substantial and long-term effect on their ability to carry out normal day-to-day activities. The impairment must generally have lasted for at least 12 months. Previous impairments may bring a person within the definition.
Impairment affects daily activities if it affects mobility, memory, concentration, perception of risk, physical danger, physical coordination. Severe disfigurement is also covered.
The Sex Discrimination (Northern Ireland) Order 1976 provides protection for men and women and for married persons. A pregnant woman may be protected by gender discrimination law without comparison to a man who is injured in an equivalent condition, insofar as this is hypothetically possible.
The Race Discrimination Order prohibits discrimination on the basis of colour, race, ethnicity, national origin. The Irish Travellers are specifically defined as a protected racial group.
The criteria for ethnic groups are a long shared history, of which the group is conscious, distinguishing it from other groups, and the memory of which keeps it alive. Cultural traditions of its own, including family and social customs and manners not necessarily associated with religious observance.
Nonessential. The following criteria tend to show that the group is an ethnic group but are not necessary requirements: a common geographical origin or descent from a relatively small number of common ancestors; a common language, though not necessarily unique; a common literature peculiar to the group; a common religion different from neighbouring groups and the general community or being in a press or dominant group within a large community.
The Employment Equality (Sexual Orientation) Regulations include protection against discrimination on grounds of sexual orientation. The Framework Equality Directive requires the enactment of age-based discrimination legislation by 2006.
The legislation does not apply to genuine occupational requirements. This is where it is an essential element, and a job requires a person having a particular characteristic, e.g., religious minister, actor, etc. The burden is on the employer to prove a genuine occupational requirement.