Sex and Sexual Orientation and Discrimination
Discrimination can take many forms including direct and indirect discrimination. Sex discrimination in the workplace is where an Employer discriminates against an Employee because of their sex. The protection against this behaviour exists in law and applies to all aspects of employment including recruitment, promotion and dismissal.
An example of sex discrimination would be where a male employee was promoted ahead of a female employer with more experience and qualifications. This applies of course in the reverse. An example of indirect sex discrimination would be where an employer adopts an early working hours policy which is applied to all employees. On the surface this doesn’t appear to be discriminatory, however because more women take responsibility for childcare, this will affect more women than men and the employer can leave themselves open to an indirect discrimination claim. Such a claim can be justified, however where the employer can show that this was a proportionate measure, to achieve a legitimate aim, this may be acceptable.
It is however unlawful to discriminate against either a female, male or married person from the very outset of the recruitment exercise and throughout the employment relationship on the grounds of their gender.
An employer can be liable for discriminatory acts committed by their Employees and it is also unlawful to instruct or to promote the commission of a discriminatory act or to encourage someone in their performance of a discriminatory act.
It is unlawful for an Employer to discriminate against an Employee or a worker on the basis of their sexual orientation.
Direct discrimination occurs when someone is treated less favourably on the grounds of their sexual orientation, e.g. promoting a heterosexual employee over a more capable, better qualified homosexual employee.
Indirect discrimination occurs when an Employer applies a criterion, a provision or practice which places people of a particular sexual orientation at a disadvantage, unless it can be objectively justified. A clear example of this could be a particular policy for maternity / paternity leave which does not take into account and does not apply to same sex couples.
Harassment is unwanted conduct which violates an Employee’s dignity or creates an environment which is intimidating, hostile, degrading, humiliating or offensive and this conduct is on the basis of the Employee’s sexual orientation. The law provides protection to all Employees from being harassed as a result of their actual or perceived sexual orientation and furthermore it protects the Employee’s position on the basis that they associate with another person of a particular sexual orientation. An example of this is where jokes are made about a work colleague being lesbian, such comments being motivated on the basis that they wear their hair short.
If an Employee lodges a complaint, or if they assist another person in the processing of their complaint, and as a consequence they are subjected to less favourable treatment, this could amount to victimisation, and this will give rise to a claim. An example of this is where someone is excluded from training on the basis of the grievance brought by them or the assistance provided to a colleague in their pursuit of a grievance.
Discrimination on the Grounds Religious Belief & Political Opinion
Protection is provided in the form of legislation ensuring that if someone discriminates against another, in the working environment because they think they are a certain religion or because they know they are a certain religion, this is unlawful and amounts to discrimination.
In the event that an Employee is treated unfairly compared to someone else, as a consequence of their religious belief or their political opinion, this is illegal. Examples of this would include dismissal from work on the basis that you are a protestant, refusing to recruit you during a recruitment exercise because you are jewish, or refusing to promote you because you are catholic.
It is illegal for an Employer to impose a rule, a policy or practice which someone of a particular religious belief or political opinion is less likely to be able to meet, when compared to other people, particularly when this places them at a disadvantage. Examples of this would include requiring all employees to dress in a particular way disregarding their faith or their culture. Another example is where employees are required to work on particular days of the week even if it contravenes the teaching of their faith.
Harassment occurs when someone is subjected to unwanted conduct which is motivated by their religious belief and this conduct has the purpose or effect of violating that person’s dignity or creating an environment which is intimidating, hostile, degrading, humiliating or offensive for that individual. An example of this, is to circulate an offensive image or cartoon depicting a particular religious figure in a manner which is intended to degrade that religion.
If an Employee lodges a complaint, or if they assist another person in the processing of their complaint, and as a consequence they are subjected to less favourable treatment, this could amount to victimisation, and this will give rise to a claim. An example of this is where someone is excluded from training on the basis of the grievance brought by them, alleging discrimination on the grounds of religious belief, or where they have provided a colleague with support in their pursuit of a grievance. This exclusion would amount to victimisation.
Unlike the rest of the UK, in N. Ireland due to our specific and unique circumstances Employers have an obligation to ensure that they do not, nor do their workers, discriminate against other workers as a consequence of their actual, supposed or absence of political opinion.
Direct Political Discrimination
This occurs when an individual is treated less favourably as a consequence of their political opinion and an example of this would be where the best candidate at interview was not appointed to the role because they were from a nationalist background and a lesser candidate from a different background was appointed instead.
Indirect Political Discrimination
This occurs when a requirement or condition, with our without intent, adversely affects considerably more people of a political group than another, and this cannot be justified on non religious grounds. An example of this is where an Employer has a workforce which is predominantly from one community rather than the other and they restrict the job opportunity solely to internal candidates.
This occurs where someone is subjected at work to subtle or overt forms of sectarian treatment e.g. singing of sectarian songs, making sectarian comments, placed in isolation or is refused co-operation, the erection of flags, bunting etc. This is a form of direct discrimination and has the effect of intimidating someone who suffers as a consequence. Complaints of sectarian harassment may be brought against the Employer as well as the harasser. Individuals can be held personally responsible in certain circumstances which would result in them being personally liable to pay compensation if the case is proven. In certain cases an Employer may be held liable for any sectarian harassment committed by employees in the course of their employment even if they don’t know about it or if they had known about it they wouldn’t have approved. The only manner in which an Employer can successfully defend this type of claim is if they can demonstrate that they took all reasonable steps to ensure that they prevented the harassment from occurring. This could take the form of the provision of information on a regular basis, reminding Employees of their obligations, or providing tailored training.
This occurs when someone is treated less favourably than others because they have lodged a complaint alleging discrimination or they have assisted a colleague in so doing. An example of victimisation occurs where someone is dismissed simply because they leant support to a colleague who lodged a complaint. This dismissal would be discriminatory on the grounds of victimisation.
Race discrimination occurs where an Employer discriminates against en Employee as a consequence of their race, colour, nationality, ethnic or national origin. N. Ireland has now become an extremely diverse place and everyone enjoys the same level of protections in terms of exposure to less favourable treatment, as a consequence of their race and this thereby guarantees equality of opportunity and treatment in the work environment.
This occurs when someone is treated less favourably because of their actual or perceived race, or as a consequence of the race of someone with whom they associate. It is important to note that there is no defence to direct discrimination. An example of direct discrimination is where an Employer refuses to engage or recruit someone due to the fact that they are a particular race.
This occurs where there is a policy, practice or procedure which applies to all workers but it places a disadvantage on people of a different race. An example of this would be the requirement for all job applicants to have GCSE Maths and English. Obviously people educated in other countries do not have access to these examinations and unless it is indicated that it is acceptable to have equivalent qualifications, this will amount to discrimination.
This occurs when unwanted conduct is displayed towards someone and it is motivated as a consequence of their racial origin and it has the purpose or effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading humiliating or offensive environment for the individual. A less obvious example of this is where derogatory comments are made to someone because they are married to a person of a different race.
This occurs when an Employee is subjected to unfair treatment directly as a consequence of a complaint they have personally raised or someone else has raised with their support. An example of this would be where someone is refused a promotion because they supported a colleague who made a race discrimination allegation against the Employer or another colleague.
In very restricted and limited circumstances there is an opportunity for an Employer to justify selecting someone from a particular racial background because it is a genuine occupational requirement. An example of this is where someone is engaged to provide a particular service to a restricted section of our community and as a consequence of their cultural needs and sensitivities it is necessary to appoint an applicant from that particular racial group.
An Employer is entitled to positively act in a manner where they can provide support, training or encouragement to people from a particular racial group. In such circumstances the Employer must ensure that any positive action taken is a proportionate way of tackling the under representation of a particular racial group without discriminating against people who are outside that racial group. This is different from positive discrimination which can be regarded as preferential treatment of a minority group. The latter is illegal.
Age discrimination occurs when an Employee, a job seeker or a trainee is treated less favourably directly as consequence of their age.
This occurs in many forms. It would for example be unlawful to dismiss someone or to not consider them for promotion simply because of their age. This is the only type of discrimination in respect of which an Employer is entitled to argue objective justification.
It may amount to discrimination if an Employer imposes a provision, criterion or practice on its workforce which indirectly puts those in a particular age group at a disadvantage. For example when a job advertisement seeks applicants from a particular age group, when others outside that age group have the relevant experience and qualifications to undertake the role.
This occurs when an Employer treats someone less favourably directly as a consequence of a complaint they have raised or the support they have provided to a colleague in their pursuit of a claim based on age discrimination.
Harassment on the grounds of age is unlawful. This may take the form of offensive comments about a person’s age, or their appearance. The law doesn’t prohibit simple teasing, however off hand comments or isolated incidents could amount to harassment which is unlawful. In certain situations this can be considered so significant or frequent in its occurrence that it may create what becomes a hostile or intimidating work environment, which in turn presents the conditions for a claim. Occasionally this could then result in an adverse decision being made e.g. the victim being dismissed or demoted. Harassment can be from a line manager, a colleague or a client or a customer. The Employer is liable in all such circumstances if the case is proven.
It is unlawful to treat someone less favourably on the grounds of their disability. This means that every disabled individual is entitled to be provided with the same opportunities and to have the same access to training as able-bodied individuals. This applies across the board from the very outset during the course of the recruitment exercise, to the provision of suitable working conditions, and at it also applies to everyone, not just Employees having access to goods, facilities and services.
A disability is defined as “a physical or mental impairment which has a substantial and long term negative effect on the ability to carry out normal day to day activities”.
This occurs when someone treats an individual less favourably than another person who doesn’t have a disability. An example of this type of behaviour is when a disabled applicant who is better qualified to undertake a role is unsuccessful in a recruitment exercise in favour of an able-bodied applicant.
There is no defence to direct discrimination.
This occurs when someone with a disability is placed at a disadvantage, specifically because of a practice, procedure or criterion that is applied to everyone and places the disabled individual at a disadvantage. An example of this is where disabled access is not provided to the place of work, putting a disabled wheelchair bound individual at a significant disadvantage.
Discrimination by Association
This is a protection which is injected into the legislation as a consequence of your association with someone close to you who has a disability. An example of this is where an Employee has not been in a position to comply with their contractual obligation in terms of their hours of work and requires some flexibility in order to attend a medical appointment due to a disability suffered by their child. If the Employer is inflexible in the approach it adopts towards allowing the opportunity to make up the work hours, and yet they have shown flexibility to another colleague who had to bring a child to a GP appointment, then this would amount to discrimination and is in breach of the legislation.
Failure to Make a Reasonable Adjustment
In circumstances where an Employee is suffering from a disability, there is a legal obligation imposed on the Employer to make a reasonable adjustment in respect of their disability. This is designed to ensure that an individual is not placed at a substantial disadvantage when compared to other people simply because of their disability. Failure to make this adjustment without justification could amount to discrimination. The cost implications of having to make an adjustment cannot be imposed or even partially imposed on the disabled individual. An example of this would be where an Employer could allow an Employee to start and finish work later than other Employees if symptoms are felt worse in the morning.
Harassment occurs when someone behaves in a manner which is intimidating or amounts to bullying and the behaviour has a purpose or effect of violating an individual’s dignity, or if they create a hostile, intimidating, degrading, humiliating or offensive environment for the individual.
The Employer has a duty to protect you from harassment at the hands of your colleagues and they may be considered to be held responsible for this in circumstances where they cannot demonstrate they have taken all reasonable steps in order to prevent this occurring. An example of this is where insulting comments are made by colleagues in the context of an individual experiencing a limp, this could amount to harassment.
Victimisation occurs when an individual is treated less favourably specifically because they have lodged a grievance or a complaint alleging disability discrimination or in circumstances where an individual has assisted or supported a colleague in the lodgement and pursuit of a disability discrimination grievance. An example of less favourable treatment in these circumstances is where an employee is not invited to attend social events simply because of the support they leant to a colleague when they complained about discrimination at work.
In the event that you feel that your rights have been violated due to discrimination, please do not hesitate to give us a call on 028 9039 7771.