Discrimination in the Workplace

Your Questions Answered

Equality Law

Volume 1.

What is Discrimination & Unfair Treatment ?

Its definition is set out in S.6 of the Equality Act 1998(as amended) which states:

Discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds referred to the discriminatory grounds.

What are the Grounds and some examples of Discrimination in the Workplace ?

The discriminatory grounds are:

(a) that one is a woman and the other is a man (Gender Ground)

(b) that they are of different civil status (Civil Status Ground)

(c) that one has family status and the other does not (Family Status Ground)

(d) that they are of different sexual orientation (Sexual Orientation Ground)

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (Religion Ground)

(f) that they are of different ages (Age Ground)

(g) that one is a person with a disability and the other either is not or is a person with a different disability (Disability Ground)

(h) that they are of different race, colour, nationality or ethnic or national origins (Race Ground)

(i) that one is a member of the Traveller community and the other is not (Traveller Community Ground)

What if the Discrimination happened but no longer exists ?.

A person has still been discriminated against and they can still seek the legal protection Equality Legislation if they so wish.

What if the Discrimination happen in the future ?

This is also prohibited.

How do you deal with Unfair Treatment in the Workplace ?

If one is treated unfairly in the workplace and it is based on any of the discriminatory grounds listed above, then the employer is contravening the law, and an employee can activate their legal rights.

How Can I Prove Workplace Discrimination ?

If the complainant can show facts of ‘significant significance’ which is how it has been described, then the burden of proof shifts to the employer to disprove that discrimination took place. Therefore, if the facts are persuasive enough, the employer is on the back foot to prove that there wasn’t discrimination.

Discrimination can be insidious and intentionally illusive and the evidential burden on the employee discriminated against should not be a burden that prevents them activating their legal right under the legislation.

Discrimination is where one person ie employee is treated less favourably and the mistreatment is based on one of the discriminatory grounds, such as the disability ground.

Say an employee has epilepsy or depression, for example. Should this employee be treated less favourably or mistreated because of this ?. No, of course not.

Employers are obligated to ensure discrimination does not take place in their workplace, conducted by themselves, or by any staff members towards another employee.

What defines Workplace Harassment ?

Harassment in the workplace is any form of unwanted conduct thats connected to one of the discriminatory grounds which are listed above.  

What if it was a Business Customer who Harassed me ?

This is prohibited by S.8 of the Employment Equality Act 2004. Employers have responsibilities under the Health and Safety Legislation, and a duty of care to look after the health, safety and wellbeing of staff.

Should the employer have taken steps to prevent the harassment and what steps were taken are important questions to answer. Many times if a customer is troublesome, they may have been in an establishment before causing trouble, for example.

Right to Information

In equality law cases the employee has a right to information from the employer and can apply under S.76 of the Equality Act 1998(as amended).

Can the Adjudicator require my employer attend a hearing ?

S.95 of the Equality Act 1998(as amended) gives powers to the Director General of the Workplace Relations Commission or the Labour Court to require information from the employer relevant to the case and can also require people to attend at a hearing.

The person requested must comply with the request.

Discrimination based on Age

The Employment Equality Acts forbid discrimination based on age.

What about Discrimination then & setting Retirement Ages ?

The Equality Miscellaneous Act 2015 brought in a new rule that states:

It shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if —

(a) it is objectively and reasonably justified by a legitimate aim, and

(b) the means of achieving that aim are appropriate and necessary. 

So, although any discrimination in the workplace based on age is legally prohibited, when it comes to setting Retirement Ages, an employer can legally do this provided the retirement age set can be objectively justified by an legitimate aim and with evidence that the way of achieving that aim are appropriate and necessary.

Is there a set Private Sector Retirement Age ?.

There is no statutory retirement age in the private sector.

The employees employment contract might have the retirement age specified, or it may it stated in company policies, such as a staff handbook, for example.

Pregnancy Related Dismissal

Dismissing an employee related to the Gender Ground is prohibited by the Equality legislation.

If a woman who is pregnant or who is on maternity leave is treated less favourable than another employee, this is prohibited also.

Employers who dismiss an employee who is pregnant have a legal obligation to set out clearly in writing the ‘’substantiated grounds in writing’’  for the dismissal.

Employers must have very robust persuasive reasons to justify the dismissal of such an employee.

In A.A.L. v C. EED033/2003 the Labour Court stated:

“Where the employee is dismissed while pregnant or on maternity leave, both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds, in the case of dismissal, as a matter of law and in the case of discrimination as a matter of good practice should be set out in writing.”

The Unfair Dismissal Acts state that the dismissal of an employee which relates to pregnancy is an unfair dismissal and thus is contrary to the legislation.

Pregnancy Dismissal – Unfair Dismissals Acts or Equality Acts ?

If a pregnant employee is dismissed and takes a case under the Unfair Dismissal Acts, the compensation she can obtain, if successful, is purely for the Economic Loss ie such as lost wages she sustained.

If, however, the same employee takes the case under the Equality Law legislation, the employee can claim loss of up to 2 years salary, which is not conditioned on having to show what her Economic Loss is.

Also, there is no employee service period requirement.

There is a lot to be said from bringing such a claim under the Equality Acts, as opposed to the Unfair Dismissals Acts.

Inference of Discrimination – Gender Ground

It is now a legal precedent the decision itself to dismiss a pregnant employee is sufficient in itself to raise an inference of discrimination on the grounds of pregnancy.

This means that an employee affected by this does not even have to establish an initial prima facie case with evidence other than the fact she was pregnant.

The employer then has to do all the work by proving that the dismissal was due to exceptional circumstances unrelated to the pregnancy.

This is the law and it is a difficult burden for an employer to overcome who has dismissed such an employee and a case is taken.

What is Victimisation

This is a singular claim one take under the Equality legislation.

Victimisation is defined by Section 74(2) of the Act as follows: –

Victimisation occurs where the dismissal or other penalisation of the employee was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).

How to Succeed in a Claim for Victimization

To succeed in this claim type, an employee must prove the following :

a. The complainant had taken one of the protected acts mentioned from (a) to (b) above;

b. The complainant was subjected to adverse treatment by the respondent, and,

c. The adverse treatment was in reaction to the protected action having been taken by the complainant.

The employee must be able to show there is a connection between a. & b. & c. above.

Disability Discrimination

If an employee has a disability, the employer is obligated to provide them with what is termed reasonable accommodation.

Say an employee was injured from a machine at work, and requested redeployment away from that machine, which was refused. In this scenario the employee can justifiable complain that reasonable accommodation was not provided by the employer contrary to their obligation.

If an employee has a disability they should ensure they notify the employer of their disability.

If they don’t know an employer has a disability, they cannot make an assessment of how they can facilitate the employee complete the job tasks.

If, for example, and employee has dyslexia, and needs software to assist them work in an IT role, they should request the employer provides this software.

What is considered a Disability by the Equality Acts

What is considered a Disability has a wide definition and is specified under the Equality Acts as:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

Concept of a Disability

A helpful case where the concept of a disability was described is HK D V D.A.B wherein it was stated.

That the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”.

Capability of Employee to complete the Role

If an employee has a disability an employer should conduct an assessment, with the input of the employee who has the disability and knows the most about it, as to the ability of the employee to fully complete the role tasks.

The Reasonable Accomodation Obligation on Employers

For employees who have a disability, their employers are obligated to provide them with what is termed Reasonable Accomodation, which should assist the employee complete the role.

Article 5 of Directive EC 2000/78 states:

‘To guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned’’.

In A School –v- A Worker [EDA1430] it was stated by the Labour Court

 “The duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate.

If all of the options that may be available are not adequately considered the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate.

An employer needs to be in possession of all the material facts, medical evidence etc. to be able to be in a position to make an informed decision as to the persons capacity should special treatment facilities be provided.

If an employee has a disability, employers must undertake an assessment to see if the employee has the capacity to complete the role.

Medical evidence should be used to make an assessment.

Disproportionate Burden Test

If an employer carries out an assessment regarding an employee with a disability capacity for the role, and it is concluded the employee will be able to complete the role with measures implemented by the employer, the employer has a decision to make whether the measures they have to implement carry a disproportionate burden to the business, or not.  

A lot of ‘reasonable accommodation’ measures can be little if no cost to the employer.

For example, if an employee has Dyslexia, this employee will need a little bit of extra time when reading and completing written reports. In todays world we seem to want everything yesterday, but such an employee can be simply given a little extra time other than do it now. This same type of employee then may also need some software to assist them reading, which is not too costly.

Other employees may need extensive ‘reasonable accommodation’ measures and this is up to the employer to decide upon.

Assessment – Two Stage Enquiry

If an employee has a disability, an employer should carry out an Assessment of the needs of the person with a disability.

This should be a two-state enquiry: First – The employer should assess the employees capacity to do the role tasks and Secondly – If it is established the employee is not fully capable of doing the tasks, then consideration must be given to what special treatment facilities could assist the employee succeed in the role.

In A Worker V A Hotel it was stated:

“The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability”.

An Employer should consider:

• What are the employees needs ?.
• Are these measures reasonable ?.
• What are the costs involved ?.

Is Workplace Stress a Disability ?

What is considered a disability under the legislation has been interpreted broadly as opposed to narrowly.

In O. V A Named Company E2004-052 workplace stress was considered a disability.

Dismissed due to Long-Term Sick Leave

If an employer dismissed an employee citing extensive sick leave as the reason, then an employer should ensure 3 key principles have firstly been satisfied, namely

i) That the employee was advised their employment was at risk.

ii) That the employer took reasonable steps to establish the medical condition.

iii) The employee must be given a chance to be heard and return to work.

If an employer does not follow the above steps, and dismisses an employee for this reason, they can be exposed to liability.

Frequently Asked Questions

What is discrimination in the workplace? / What would be considered discrimination?

Discrimination is where one person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds referred to the discriminatory grounds. It is must be because of one of the grounds mentioned in the above paragraph.

So, for example, the discrimination must be related to one of the grounds such as disability. If one was treated unfairly at work which was connected with their epilepsy, this would be discrimination contrary to legislation.

What are 3 examples of discrimination?

1. If a female employee is treated unfairly due to gender;
2. if an employee with a disability is treated unfairly which is connected to having the disability;
3. If an employee is treated unfairly due to their race.

What is an example of indirect discrimination?

Indirect discrimination can be insidious but is wholly unacceptable, but a difficultly with it is it can be less clearly visible.

If, for example, people at work are treated the same, but the effect of the treatment on the employee with a disability, for example, is unfair which is based on the protected characteristic.

What is not considered discrimination?

If you were treated unfairly which is not related to one of the specified grounds.

DISCLAIMER

Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.