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Discrimination1. Can I not just follow my instincts, when it comes to selecting amongst job applicants? 2. Can I exclude a couple of men who have applied for jobs normally done by women? 3. Can I give jobs to older women, who will not get pregnant? 5. Do we have to include an otherwise suitable job applicant
on the short list if we know he has had a recent brush with cancer? 7. What is meant by the duty to make 'reasonable adjustments'? 18. What are the penalties for race, sex and disability discrimination? 19. How long is it likely to be before a case comes to a tribunal, and how much will it cost to defend? 1. Can I not just follow my instincts, when it comes to selecting amongst job applicants? No. Your instincts might be discriminatory, whether you know it or not, in which case you might well fall foul of the anti-discrimination legislation (for example, the Sex Discrimination Act 1975 as amended). The legislation protects individuals against discrimination in employment, which includes the process of selecting applicants for jobs. New legislation, banning discrimination on grounds of age, is to be introduced with effect from October this year. To stay on the right side of the law, ensure that your selection criteria are objective, and that any requirements are justified, given the nature of the job. Do not make stereotypical assumptions (for example, that a woman could not work with heavy machinery), as they may be discriminatory. Also ensure that your selection process is not discriminatory (for example, the location and timing of your interviews, and your interviewing and assessment techniques). Keep full records of your criteria and processes, and their application to all candidates, detailing the reasons for the decisions made. 2. Can I exclude a couple of men who have applied for jobs normally done by women? No. This would be discriminatory. If, however, you can prove that being a woman is a Genuine Occupational Qualification for the job, the discrimination would be lawful. This would normally apply only where: · authenticity is involved - for example, where someone of a particular
sex is required for an advertisement or television part; This defence is limited, and will be interpreted narrowly by an Employment
Tribunal. You will not be able to use it to disguise an otherwise discriminatory
reason for non-selection. 3. Can I give jobs to older women, who will not get pregnant? Discriminating against someone because of pregnancy or childbirth is illegal. Discriminating against someone because they might become pregnant in the future certainly flouts the spirit of the law, and discriminating against younger women also falls foul of the code of practice on age discrimination. The code of practice does not have the force of law, but will be taken
into account by an Employment Tribunal. In addition, in October this year
new legislation will come into force outlawing discrimination on grounds
of age. 4. We prefer to take on younger workers, even though we sometimes get applications from older workers who are better qualified. Is this illegal? There is no current legislation barring discrimination on age grounds, although some will be introduced in October 2006 (see question 3). There is, however, a code of practice which discourages 'ageism', and while this does not have the force of law, it is likely to be taken into account by an Employment Tribunal in deciding whether an employer has behaved reasonably and fairly. You might also be guilty of indirect sex discrimination, if you decline
to take on older workers who have had 'career breaks'. The majority of
these workers are likely to be women who have taken time off to care for
their children during their early years. 5. Do we have to include an otherwise suitable job applicant on the short list if we know he has had a recent brush with cancer? In general terms, any individual who can prove that he (or she) has 'a physical or mental impairment which has a substantial and long-term adverse effect' on their ability to carry out day-to-day activities is protected under the anti-discrimination provisions of the Disability Discrimination Act (DDA). Even if there is currently no substantial adverse effect, an individual with a progressive condition would be covered, even if the condition was in remission, if it had produced an impairment which had some adverse effect on their current ability to carry out day-to-day activities, and was likely to lead to a substantial adverse effect over time. Your best course is to base your decision on whether or not to short
list on written, objective criteria, and to keep a record of how those
criteria applied to all the candidates. 6. What do we do about an otherwise well-qualified candidate for a job dealing with customers, who turns out to have a severe facial disfigurement? Less favourable treatment 'on the ground of' disability can be justified under the Disability Discrimination Act (DDA) only if the reason for it is both 'material to the circumstances' of the particular case, and 'substantial'. Moreover, it has been unlawful (since October 2004) for an employer to treat a disabled person less favourably, on the grounds of his (or her) disability, than he treats (or would treat) a person not having that particular disability, whose relevant circumstances (including his abilities) are the same as or not materially different from, those of the disabled person. It would, therefore, be unlawful for you to turn down a candidate, solely
on the grounds that other employees, or customers, would feel uncomfortable
dealing with him (or her). 7. What is meant by the duty to make 'reasonable adjustments'? Prior to 1 October 2004, the Disability Discrimination Act (DDA) provided that, where any arrangements made by or on behalf of an employer placed a disabled person at a substantial disadvantage compared with non disabled persons, the employer was under a duty to take such steps as were reasonable in the circumstances in order to prevent those arrangements from having that effect - unless he could show that his failure to comply with that duty was 'justified'. From 1 October 2004 the scope of the duty has been widened, from any
'arrangements made by or on behalf of an employer', to any 'provision,
criterion or practice applied by or on behalf of an employer'. And, importantly,
the defence of 'justification' is removed. It is therefore no longer possible
for an employer to argue that he (or she) was justified in failing to
make an adjustment: the question is purely whether such an adjustment
would have been reasonable. In deciding whether an adjustment would have been reasonable the Employment Tribunal will take a number of factors into account: · whether the changes would be effective; 8. We have few workers from ethnic minorities, although they make up a high proportion of the local population. Can we advertise specifically to them? Yes, but only with a view to encouraging them to apply: thereafter it is a question of the best person for the job. It would be just as illegal to take on someone because they came from an ethnic minority, as it would be to take them on because they were white. An advertisement to people of a particular race may, however, be lawfully placed if discrimination would be lawful in the circumstances - for instance, because being of a particular race was a genuine occupational qualification for the job. So, for example, a restaurateur may lawfully advertise for Chinese waiters for his Chinese restaurant. 9. We have a mixed workforce. Can we require people to take literacy tests, as a recruitment requirement? Provided that you can justify the tests by the requirements of the job,
yes; otherwise no. It would be reasonable to require people to demonstrate
literacy if you wanted them to write sales letters, but not if you wanted
them to fill cans. If you do impose a literacy test, you must require all candidates for
that post to undertake it. Requiring applicants from ethnic minorities
to undertake such a test, 10. Are we vulnerable to a charge of discrimination if a black manager never gets a bonus because he never gets awarded enough points by his peers? It depends on the reason for the lack of points. If the points are awarded according to an objective test (for example, the number of new clients introduced by the manager), it will not be discriminatory. However, if the reason he is not being awarded points is his colour, it clearly will be discriminatory. As the employer, you will be held responsible unless you can show that you have taken such steps as are reasonably practicable to prevent your employees' discriminatory 11. Are we vulnerable to a charge of harassment because a black worker has heard a couple of colleagues making cracks about coloured people? Yes. The Race Relations Act 1976 now provides for harassment as a type of discrimination in its own right. Under the Act, one person subjects another to harassment where on the grounds of race or ethnic or national origins, he (or she) engages in unwanted conduct which has the purpose or effect of: " violating that person's dignity, or
You, as the employer, will be liable unless you take reasonable steps to prevent the discriminatory behaviour. This could include taking disciplinary action against offending employees, and ensuring that everyone is aware of your anti-harassment policy (question 20). 12. Can we be sued for discrimination on grounds of nationality, because we have refused to confirm the contract of a Yugoslavian refugee? Once refugee status has been granted, an individual has the same social and economic rights as a UK citizen, including full access to employment. So your refugee is entitled to the protection of UK employment legislation. Discrimination is unlawful if it is on racial grounds, but racial grounds are defined under the Race Relations Act as any of the following: · colour; If you are refusing to confirm the Yugoslavian's contract on the grounds
of nationality, you are at risk of a charge of discrimination; but if
it is for other reasons it will not be discriminatory. If there are conduct
or performance issues, however, a fair procedure should be followed. That
procedure must be equivalent to (or better than) the new statutory minimum
requirements (see Discipline
and grievance). Otherwise (provided that the service qualification
has been met), there will be a finding of automatic unfair dismissal in
the Employment Tribunal. 13. Can we employ someone from Australia to work in our information technology department? He is willing to work for less than the UK candidate. No. It would be a criminal offence to employ someone who does not have permission to be in or to work in the United Kingdom. As from 1 May 2004, changes to section 8 of the Asylum and Immigration Act 1996 provide the employer with a defence against conviction, provided certain specified documents belonging to potential employees are checked and recorded. The specified documents are set out in two lists. All potential employees should be asked to show 1 of the documents held in list 1, or two documents in the combinations specified in list 2. List 1 includes a UK passport. One of the combinations of list 2 is a work permit and a passport or other travel document endorsed with the correct stamp to show that the holder has leave to enter or remain in the UK, and is therefore permitted to take the work permit employment in question. A late amendment to the Asylum and Immigration Act 2004 means that any
employer who takes on an employee who does not have permission to work
in the UK is potentially liable for an unlimited fine. Moreover, there
is no longer a limit on the period within which the prosecution can be
brought. 14. We have a female employee on her third official warning. She now says she is pregnant. Can we proceed with disciplinary action? Unfavourable treatment of a female employee because she is pregnant amounts to direct, unlawful, discrimination. In this case, however, since disciplinary proceedings were started before you knew she was pregnant, it would be difficult for her to argue (if poor conduct led to another disciplinary hearing) that she had been discriminated against because she was pregnant. Be careful, however, to ensure that she is well enough to attend any future disciplinary hearings, that they are conducted at a convenient time, and that all normal disciplinary procedures are followed (including the statutory minimum procedures). Take account of the fact that her pregnancy might explain her conduct. Otherwise any dismissal may be procedurally unfair. 15. If a woman wants to come back to work on a part-time basis, after having a child, is she entitled to the same benefits as before? Part-time workers are entitled to be no less favourably treated than comparable full-time workers on similar contracts in the same employment; and moreover, women are protected from discrimination on grounds of maternity. Your employee is, therefore, entitled to the same benefits as her full-time colleagues, proportionate to her working hours. The Part-Time Workers' Regulations provide you with a defence, if you
can show that different treatment of a part-time worker is justified on
objective grounds. For example, the administrative and other costs of
calculating the pension benefits of part-timers may be so great as to
provide you with a justifiable reason for changing their arrangements.
But an Employment Tribunal would weigh the advantage to the employee against
the detriment to you. 16. We had two mothers and one pregnant woman amongst recent redundancies. Now they are claiming sex discrimination. Should we be worried? It is unlawful to select an employee for redundancy because she is pregnant. If you want to avoid claims for unfair dismissal and/or sex discrimination, ensure that your selection is based on objective criteria such as time-keeping, absence levels (ignoring maternity leave), and knowledge and/or skills. It is also unlawful to select an employee for redundancy because she is a mother, although it might be more difficult for her to prove because she would have to demonstrate that she had received less favourable treatment than comparable fathers. Be aware of the risk of indirect discrimination, too. For example, you
might want to keep on people who are willing to take on overtime from
time to time, or to make part-time employees redundant before full-time
employees. But either policy could indirectly discriminate against mothers,
who are generally the main child carers, and may not be able to meet your
selection criteria. Even if you applied the same criteria to both men
and women, you would effectively be indirectly discriminating against
women. 17. It is several months since we sacked a black employee who left claming race discrimination. We have heard nothing since. Can we relax? A claim of racial discrimination must be made to an Employment Tribunal within a period of three months 'beginning when the act complained of was done'. However, employees who have reasonable cause to believe that their case is being dealt with internally through the statutory grievance procedure (see Discipline and Grievance) can obtain a three-month extension, which will automatically be triggered by: · presenting the ET1 (see Employment Tribunals) within the normal
time limit; and In your case, if the employee has not sent in a grievance letter, or attempted to lodge an ET1 within the three month period, he (or she) will not be entitled to an extension of time. The Employment Tribunal does also have discretion to extend time, when
it would be 'just and equitable' to do so. A Tribunal would look at the
reason for and the extent of the delay, whether the complainant was professionally
advised, whether there were any genuine mistakes based on erroneous information
and what prejudice, if any, would be caused by allowing or refusing to
allow the claim to proceed. 18. What are the penalties for race, sex and disability discrimination? If you are found guilty of discrimination, you will probably be ordered to pay damages to the employee (or job applicant) concerned. The damages are designed to put the individual in the position in which he (or she) would have been, had the discrimination not occurred. The award is likely to consist of compensation for the financial loss that the employee has suffered. However, the compensation award might also include an element for injury to feelings. The size of this award depends upon the seriousness of the discrimination and the effect it has had on the individual concerned. It is usually between £2,000 and £5,000, but there have been cases where injury to feelings has been assessed at £40,000. The Tribunal can also order you to take action to reduce or obviate the
adverse effects on the individual of the act of discrimination. If you
fail to comply, further financial penalties will follow. 19. How long is it likely to be before a case comes to a tribunal, and how much will it cost to defend? Listing periods for Employment Tribunals vary, but it usually takes between three and six months, from the date that the claim is issued to the Tribunal hearing. The cost depends on the nature and complexity of the case, and to some extent on the area in which it is being brought. A straightforward, one day, unfair dismissal hearing would probably cost between £3,000 and £5,000, assuming that a solicitor (based outside London and the south east) was acting for you throughout. Discrimination cases are invariably longer and more complex - and therefore
more expensive. 20. How can we demonstrate that we oppose discrimination? And would it help if we were ever subject to a case? Make sure that you have a written policy, and that it has been issued to all employees. Also make sure that your managers are all trained in discrimination matters, and that you have effective monitoring procedures. It is vital that all steps that are reasonably practicable - including if necessary disciplinary action against employees who engage in discriminatory activities - are taken to provide a discrimination-free environment. Such steps should help if you ever become subject to a discrimination case. If the discrimination has been practised by your employees against your clearly-established policies, it could mean that you escape liability altogether. 21. Apart from sex, race, disability and age, are there any other forms of discrimination that we have to look out for? Yes. Since December 2003 it has been illegal under 1 set of regulations to discriminate against anyone because of his or her sexual orientation, religion or belief. It is also illegal under another set of regulations to discriminate because of his or her civil status. Legislation due to come into force in October this year will also outlaw
discrimination on grounds of age. Amongst other changes, this will mean
that it is illegal to force anyone to retire earlier than age 65, unless
you can show that compulsory retirement at an earlier age is appropriate
and necessary for employees doing this job. Employees who want to carry
on beyond 65 may ask to do so, and you must give the request serious consideration,
although they will not be able to sue for unfair dismissal if you decline
the request. Although these FAQs highlight some key issues relating to employment law, it should not be considered comprehensive and is not a substitute for seeking professional advice on a specific issue. Disclaimer Although we have made every effort to ensure that the information contained in these FAQs is accurate, Business Hotline Publications and the named experts disclaim any liability for any errors or omissions. © Business Hotline Publications Ltd
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