Mark Hamilton: Employment-related discrimination legislation has shown it knows no bounds

Mark Hamilton is a partner at Dentons.
Mark Hamilton is a partner at Dentons.
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While the phrase “ignorance of the law is no defence” is more commonly associated with criminal cases, employers might find the principle is also worth bearing in mind when grappling with discrimination law.

Since the first Race Relations Act in 1965, UK legislation has sought to protect individuals from discrimination – in the workplace and beyond – based on personal attributes known in law as “protected characteristics”. The scope of discrimination legislation expanded with the enactment of the Sex Discrimination Act 1975, the Disability Discrimination Act 1985 and the Equality Act (Sexual Orientation) Regulations 2007, to name but a few. The culmination of what we now consider to be our equality and discrimination law can be found in the Equality Act 2010. In superseding the previous Acts, the main purpose of this Act was to harmonise discrimination law, but it also sought to strengthen the law, to support progress on equality.

The Act prohibits discrimination against individuals related to nine specific protected characteristics: namely sex, age, sexual orientation, gender reassignment, race, pregnancy and maternity, marriage or civil partnership, religion or belief, and disability. Discrimination on these grounds is unlawful both in the workplace and more widely in relation to the provision of goods and services. Unlawful discrimination includes direct discrimination, discrimination by association or perception, indirect discrimination, harassment, victimisation, discrimination arising from disability, and discrimination arising out of a failure to make reasonable adjustments for a disabled person.

The legislation protects applicants, employees and ex-employees, so it applies to all stages of the employment lifecycle – from recruitment to providing references after termination. Unlike the statutory claim of unfair dismissal there is no qualifying service requirement to bring a discrimination claim, and it applies to all employers, from the smallest local operation to multinationals.

As might be expected, an employer should not subject one person to less favourable treatment than another because of their age, sex, religion, or the fact that they have a disability or are of a particular sexual orientation. Examples in the employment sphere might be in relation to promotion, pay or opportunities. Blatant less favourable treatment can only be justified in very limited circumstances.

Taking this one step further, employers should also avoid taking decisions or enacting policies that have a negative disparate impact on a protected group – for example, people over the age of 60. Although such indirect discrimination can sometimes be justified on objective grounds, careful consideration must always be given by the employer to the likely impact on the groups affected. If the impact will be worse for one group, the employer must be able to show that the policy is really necessary, as well as considering whether the objective could be achieved in a less discriminatory way.

Protected characteristic-related harassment is also unlawful under the Act, and therefore requires employers to take reasonable steps to ensure that the workforce is aware of the protected characteristics and the principles of respecting diversity.

In relation to disabilities, a person is disabled under the terms of the Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out day-to-day activities. In a 2017 report by the Equality and Human Rights Commission, it was estimated that there are 13 million disabled people living in the UK.

Employers have a duty to make reasonable adjustments for employees they know, or should know, are disabled. This has implications ranging from obtaining medical advice on what assistance should be provided, to making significant changes to policies in order to lessen the disadvantages faced by disabled employees.

In the eight years since the Act, a substantive body of case law has developed. From cases concerning religious discrimination which have reached the European Court of Human Rights concerning household names, to allegations of age, sex and race discrimination across police forces and public bodies nationwide, employment-related discrimination legislation has shown it knows no bounds. The provisions of the Act should be treated as mainstream and fundamental by all UK employers. Any employers who are not well-versed on their obligations under the Act should take steps to plug this knowledge gap without delay.

Mark Hamilton is a partner at 
Dentons