Adviser Tool: Analysing your client’s discrimination problem
This advice applies to England, Wales and Scotland
This tool will help you identify your client’s claims and the legal issues in the case.
We have broken down each of the types of discrimination namely:
- Direct discrimination
- Indirect discrimination
- Harassment
- Victimisation
- Failure to make reasonable adjustments
- Discrimination because of something arising in consequence of a disability
In each instance we have then explained:
- The Key elements of the legal definition under the Equality Act
- What the Employment Tribunal will need to decide if you are bringing that claim
Direct discrimination
Direct discrimination happens when you are treated differently and worse because of a protected characteristic [PC]
Key elements of the Equality Act definition:
Less favourable treatment than others: you need to show that you were treated differently and worse. In other words you were disadvantaged in some way.
You must be able to show that the less favourable treatment was because of a PC. You don’t need to say that the PC was the only reason for the less favourable treatment — it is enough that it was a factor. Sometimes this is called the ‘causation’ test. You must show the tribunal evidence that the PC was the cause of the less favourable treatment. Sometimes it is called the ‘reason why’ test. Sometimes the reason for the less favourable treatment will be self-evident. At other times the tribunal has to infer ‘the reason why’ from all of the evidence. The comparator you choose (see below) can not only establish less favourable treatment but it helps the tribunal to determine the ‘reason why’ as well.
It must be because of a PC- but it doesn’t have to be a PC that you have. It can be because the employer thought you had that PC (by perception) or because of a connection with someone with that PC (by association).
You need to compare your treatment with someone else: a real or hypothetical person who doesn’t have that same PC. This is so you can show that you were treated less favourably than someone who doesn’t have that PC. That person is the ‘comparator’. To make a good comparison, they should be in the same or similar relevant circumstances to you — so that you can show that the difference is the PC. The law says that there must be ‘no material difference between the circumstances of the case’.
Direct disability discrimination works slightly differently. The comparator must be someone who doesn’t have your disability, is in similar circumstances and has the same abilities as you. This is so that you can show it was the PC, not different abilities, that was the reason for the less favourable treatment.
What the Tribunal will need to decide
- What is the less favourable treatment?
- Do you have the Protected Characteristic? (or is it by association and perception)
- Who is the comparator (real and hypothetical)
- Is there ‘no material difference between the circumstances relevant to each case’ for you and the comparator? (s23 Equality Act 2010)
- Is it because of a Protected Characteristic?
- Direct age discrimination: can the employer show their different treatment of you is a proportionate means of achieving a legitimate aim
Indirect discrimination
Indirect discrimination happens when most people (or everyone) are treated in the same way, and this has a different impact on you and other people who have the same protected characteristic as you.
Key elements of the Equality Act definition:
The key point here is the focus on the different impact
You need to be able to identify what precisely caused that different impact — the ‘provision criterion or practice’ (PCP for short). If you get that wrong, any ET claim will fail
You need to show that the impact was different for you, and people who share your PC — that is known as adverse impact, or disproportionate impact. You compare the impact on you, with the impact on people who don’t have your PC.
You need to show the impact — the Act calls that ‘disadvantage’
Indirect disability discrimination: this works slightly differently: compare the adverse impact on people who share your particular disability, with people who don’t have that particular disability
Defence of objective justification
No indirect discrimination for pregnancy & maternity
What the Tribunal will need to decide
- What was the ‘provision criterion or practice’? This is a deliberately wide phrase. It is often abbreviated to PCP.
- What was the particular disadvantage for you? For people who share your protected characteristic?
- When was the PCP applied to you? Or is it something in the future that would put you at a disadvantage?
- What was the adverse / disproportionate impact on the pool of people you are comparing yourself to?
- Does the employer have a defence that the PCP was a ‘proportionate means of achieving a legitimate aim’? This is also known as the employer’s ‘objective justification. The tribunal will ask the following questions to determine whether the justification is sufficient.
- What is the employer’s justification for the PCP?
- What objectives are they seeking to achieve with the PCP?
- Is it a legitimate aim that is not tainted by discrimination?
- Are the measures taken to achieve it proportionate?
- Are the measures proposed rationally linked to that objective?
- Are they no more than necessary to achieve the legitimate aim?
Harassment
It is unlawful for your employer (and its workers for which they are responsible) to harass you.
Key elements of the Equality Act definition:
There are three kinds of unlawful harassment in the Equality Act, harassment related to a protected characteristic, sexual harassment, and less favourable treatment because you rejected or submitted to sexual harassment than if you had not done so.
No need for a comparator for the first two kinds of harassment
Unwanted conduct is a key element.
Need to show the conduct was intimidating, hostile etc.
Includes actions that are targeted at you, and also actions that appear to be in the background but create a hostile environment for you
No protection against harassment related to pregnancy & maternity, and marriage or civil partnership — consider if it is possible to claim direct discrimination
An employer has vicarious liability for the actions of its workers. This only covers actions which are ‘in the course of employment’
You may also need to think about constructive unfair dismissal
What the Tribunal will need to decide
- What was the unwanted conduct?
- Was it related to a protected characteristic?
- Looking at it both subjectively and objectively, did it have the purpose or effect of violating your dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment?
- Was it done in the course of employment?
- Is the employer vicariously liable?
- Does the employer have a defence of taking all reasonable steps to prevent it?
Victimisation
Victimisation is when you are treated badly because you complained about discrimination or stood up for discrimination rights.
Key elements of the Equality Act definition:
Firstly, you have to show that you did a protected act
Secondly. that you were subjected to a detriment: treated badly or disadvantaged in some way
Thirdly, you must show that you were treated badly because of the protected act. There must be a link between the two (the causation).
What the Tribunal will need to decide
- What was the protected act
- Were you subjected to a detriment? What was that?
- What is the link (‘causation’) between the protected act and the detriment?
- Did you act in good faith?
Pregnancy and maternity discrimination
Pregnancy discrimination is when you are treated badly because of something to do with your pregnancy or maternity.
Key elements of the Equality Act definition:
Pregnancy discrimination is only unlawful if it happens within a ‘protected period’ of time. It is important to explain that, and what to do about discrimination that happens outside that period of time (consider sex discrimination)
It is about being treated badly — the Act says ‘unfavourable treatment’. That means there is no need to compare yourself to another worker.
Check your other employment rights relating to pregnancy eg around redundancy, risk assessments, automatic unfair dismissal
What the Tribunal will need to decide
- What was the unfavourable treatment
- Was it because of your pregnancy, or illness related to your pregnancy?
- Was it because you were on maternity leave or you wanted to take maternity leave? What kind of maternity leave?
- Did the unfavourable treatment happen in the protected period?
Failure to make reasonable adjustments for disabled workers
If your employer knows, or ought to know, that you are a disabled worker, then they have a duty to make changes to any working arrangements that disadvantage you. This includes policies, working practices, physical layouts, and also providing help. The duty is to make reasonable changes that avoid the disadvantage for you.
Key elements of the Equality Act definition:
An employer only has this duty to an individual disabled worker
The duty only applies when and if the employer knows, or ought to know, that the worker is disabled — requirement for knowledge
The duty is in three parts: (1) about making changes (reasonable adjustments) to a ‘provision criterion or practice’ (2) making changes to physical features (3) providing help — auxiliary aid
The duty is to make a change that avoids the worker being put at a substantial (meaning more than minor or trivial) disadvantage
Have you or your employer checked your eligibility for support from Access to Work?
What the Tribunal will need to decide
- Do you meet the Equality Act definition of disability?
- Did your employer know you were disabled? Should they have known?
- What was the ‘provision criterion or practice’? This is a deliberately wide phrase. It is often abbreviated to PCP.
- What substantial/ more than minor or trivial disadvantage did the PCP cause you?
- Was there a physical feature that needed to be changed removed or altered or a reasonable means found of avoiding it to avoid the disadvantage?
- Did you need help such as an auxiliary aid?
- How was the disadvantage linked to your disability?
- Did the employer make any reasonable adjustments?
- Did those adjustments remove or avoid the disadvantage for you?
- Was there another reasonable adjustment that could have been made that would/ might have removed or avoided the disadvantage?
Discrimination because of something arising in consequence of a disability
It is unlawful discrimination if you are treated badly by your employer because of something connected to your disability, if that treatment cannot be justified.
Key elements of the Equality Act definition:
This is about unfavourable treatment
This is most often known as ‘discrimination arising from disability’ (DAFD) but this phrase is confusing — as it is different to direct discrimination. Key difference — direct is about discrimination because of a disability itself: DAFD is about discrimination because of something that arises in consequence of the disability — so not the disability itself. There is no need to identify a comparator because you are not comparing your treatment to anyone else. Easiest example: being treated badly because you have a guide dog is DAFD, being treated differently because you are blind is direct discrimination.
So: why were you treated badly? Was it because of something connected to your disability?
The employer only has a duty if they knew the worker was disabled, or they could reasonably be expected to have known
There is an objective justification defence, namely whether the employer can show that the less favourable treatment was a proportionate means of achieving a legitimate aim.
It is important to also consider if your employer had made any reasonable adjustments for you that would have changed this situation? If they didn’t and they should have done, they are unlikely to be able to defend the DAFD claim.
What the Tribunal will need to decide
- Do you meet the Equality Act definition of disability?
- Did your employer know you were disabled? Should they have known?
- What was the ‘something arising in consequence of’ your disability?
- What was the treatment, was it ‘unfavourable’ and was it because of the ‘something arising in consequence of’ your disability?
- Does the employer have an objective justification defence?
- Was the unfavourable treatment a proportionate means of achieving a legitimate aim?
