This text is from trade union solicitors OH Parsons, and is the introductory section to its specific guides to the law on discrimination in employment. It sets out the basics of how this legislation works - and its limits! The specific guides will be posted on this website in due course.
1 This is the second in a series of five brief guides to discrimination in employment. They are intended as introductory handouts for trade union representatives and people in the workplace. Their aim is to set out the main provisions which protect and enhance the equal treatment of men and women at work. Since discrimination law has become increasingly complex, the particular circumstances of a case may have a significant impact on the prospects of success and these Guides are not a substitute for legal advice except in the clearest of cases.
2 Often driven by legislation from Europe, the law now regulates discrimination by age (Guide 1), disability (Guide 2), race (Guide 3) and sex (Guide 4) as well as sexual orientation and religion or belief (Guide 5). It includes maternity and parental rights, gender assignment and marital status.
3 The increasing emphasis on eliminating discrimination is underlined by the fact that in October 2007 a single equality body, the Commission for Equality and Human Rights, took over the functions of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. The new Commission has wide powers to monitor the law, conduct inquiries and investigations, issue codes of practice, enforce compliance of statutory duties and will also assume new powers over age, religion and belief and sexual orientation.
4 Whilst these guides are restricted to discrimination in employment, the legislation also deals with discrimination more widely in education, planning, by public authorities and in the provision of goods, facilities, services and premises.
5 The following Acts of Parliament are the most prominent of those that make discrimination unlawful and either prohibit activities or create rights to achieve that aim.
a) Equal Pay Act 1970 (“EPA”)
b) Sex Discrimination Act 1975 (“SDA”)
c) Race Relations Act 1976 (“RRA”)
d) Disability Discrimination Act 1995 (“DDA”)
e) Employment Equality (Religion or Belief) Regulations 2003 (“RBR”)
f) Employment Equality (Sexual Orientation) Regulations 2003 (“SOR”)
g) Civil Partnership Act 2004 (“CPA”)
h) Employment Equality (Age) Regulations 2006 (“AR”)
6 Many of these statutory requirements came into force later than the date they were enacted and others have been amended, often extensively, since their introduction. The Acts are referred to in the Guides by their initials.
7 There are some important distinctions between these Acts in the way they regulate discrimination but generally the legislation prohibits in four main ways:
a) Direct discrimination
b) Indirect discrimination
8 In addition, for instance, the DDA imposes obligations on employers to make reasonable adjustments for people with disability and the SDA and AR make it unlawful to treat anyone less favourably if they refuse an instruction to discriminate on grounds of age.
9 And whereas under the SDA and RRA there can be no justification of direct discrimination, the AR does permit the justification of direct discrimination.
10 These and other matters are dealt with more fully within each Guide.
11 As to jurisdiction, cases concerning discrimination in employment can only be brought in Employment Tribunals.
12 The remedies for unlawful discrimination are similar under all the relevant legislation. Where a complaint is upheld, and it is just and equitable to do so, an employment tribunal must make:
a) a declaration about the rights of the complainant;
b) an order to pay compensation;
c) a recommendation that the respondent takes action to reduce the adverse effect of its discriminatory treatment.
13 There is no cap to the damages that an employment tribunal can award in discrimination cases and may include past loss (of earnings, benefits and pension for example), future loss, injury to feelings, personal injury, aggravated damages, exemplary damages and interest.
14 With some exceptions, the statutory dispute resolution procedures apply to all discrimination cases and a failure to comply with them by either the employee or the employer may lead to an award being decreased or uplifted by anything up to 25%.
15 The Human Rights Act 1998 (“HRA”) gives domestic effect to the European Convention on Human Rights (“ECHR”) and makes it unlawful for public authorities to act in a way that is incompatible with a convention right. Therefore courts and employment tribunals must, so far as possible, interpret all legislation compatibly with such convention rights. It may be possible in certain circumstances to bring an action against a public authority directly for acting incompatibly with the ECHR. Article 14 ECHR prohibits discrimination but its protection is limited since it only applies to discrimination connected with other ECHR rights. These include the prevention of inhuman and degrading treatment (Art 3); respect for private and family life (Art 9), freedom of thought, conscience and religion (Art 9) and freedom of expression (Art 10).