Workplace harassment is one of six kinds of 'prohibited conduct'
recognised by the UK's Equality Act 2010. Initially there were seven in
total but after the 2013 changes, six now remain. We'll look at each in
detail and discover how they're defined.
Before doing that though, you will need to know what 'protected characteristics' are as the different types of 'prohibited conduct' (types of discrimination) relate to specific 'protected characteristics.'
As of 2014 there are nine types of protected characteristics listed within the Equality Act 2010 - they are:
Each of these protected characteristics have their own definitions. Time permitting, that will be the subject of a future article but for now, as promised, let us have a look at the different types of Discrimination.
1. Direct discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have (see perceptive discrimination below), or because they associate with someone who has a protected characteristic (see associative discrimination below).
2. Associative discrimination (one kind of direct discrimination) already applied to race, religion or belief and sexual orientation under previous regulations. The Equality Act 2010 extended this to cover age, disability, gender reassignment and sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic.
3. Perceptive discrimination (one kind of direct discrimination) also applied to age, race, religion or belief and sexual orientation and was extended to cover disability, gender reassignment and sex. This is Direct Discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
4. Indirect discrimination already applied to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership and was extended to cover disability and gender reassignment. Indirect discrimination can occur when you have a provision, condition, or practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if you can show that you acted reasonably in managing your business, i.e. that it is 'a proportionate means of achieving a legitimate aim'. A legitimate aim might be any lawful decision you make in running your business or organisation, but if there is a discriminatory effect, the sole aim of reducing costs is likely to be unlawful. Being proportionate really means being fair and reasonable, including showing that you've looked at 'less discriminatory' alternatives to any decision you make.
5. Harassment is 'unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of:
(a) violating an individual's dignity or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual'.
Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association.
5a. Third party harassment was repealed as part of the 2013 changes to the Equality Act 2010.
6. Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. There is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint under the Act.
Discrimination is a complex area of law and if you think you or being discriminated against or someone you know experiencing discrimination, get advice quickly as a claim in court may not be accepted after 90 days.
Nothing in this article constitutes or is intended to constitute legal advice as it is merely an overview of some of the provisions within the Equality Act 2010 and changes after 2013.
Before doing that though, you will need to know what 'protected characteristics' are as the different types of 'prohibited conduct' (types of discrimination) relate to specific 'protected characteristics.'
As of 2014 there are nine types of protected characteristics listed within the Equality Act 2010 - they are:
- age
- disability
- gender reassignment
- marriage & civil partnership
- pregnancy & maternity
- race
- religion & belief
- sex
- sexual orientation
Each of these protected characteristics have their own definitions. Time permitting, that will be the subject of a future article but for now, as promised, let us have a look at the different types of Discrimination.
1. Direct discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have (see perceptive discrimination below), or because they associate with someone who has a protected characteristic (see associative discrimination below).
2. Associative discrimination (one kind of direct discrimination) already applied to race, religion or belief and sexual orientation under previous regulations. The Equality Act 2010 extended this to cover age, disability, gender reassignment and sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic.
3. Perceptive discrimination (one kind of direct discrimination) also applied to age, race, religion or belief and sexual orientation and was extended to cover disability, gender reassignment and sex. This is Direct Discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
4. Indirect discrimination already applied to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership and was extended to cover disability and gender reassignment. Indirect discrimination can occur when you have a provision, condition, or practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if you can show that you acted reasonably in managing your business, i.e. that it is 'a proportionate means of achieving a legitimate aim'. A legitimate aim might be any lawful decision you make in running your business or organisation, but if there is a discriminatory effect, the sole aim of reducing costs is likely to be unlawful. Being proportionate really means being fair and reasonable, including showing that you've looked at 'less discriminatory' alternatives to any decision you make.
5. Harassment is 'unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of:
(a) violating an individual's dignity or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual'.
Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association.
5a. Third party harassment was repealed as part of the 2013 changes to the Equality Act 2010.
6. Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. There is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint under the Act.
Discrimination is a complex area of law and if you think you or being discriminated against or someone you know experiencing discrimination, get advice quickly as a claim in court may not be accepted after 90 days.
Nothing in this article constitutes or is intended to constitute legal advice as it is merely an overview of some of the provisions within the Equality Act 2010 and changes after 2013.
A video short covering the main headings can be seen on Change Agency's YouTube channel http://www.youtube.com/channel/UCeoZsoeokP8071MLcQxUGdQ
I've trained managers, human resources professionals and equality & diversity specialists in this area for over 25 years. Many don't set out to discriminate but know it happens. The art (or is it science?) is in reducing the likelihood of it happening in the first place. If you're serious about weeding out discrimination from your workplace and have organisational commitment to do so, get in touch via my company website http://www.the-change-agency.co.uk
Discrimination law is a complex area and if you're in need of advice useful sites include the Equality and Human Rights Commission and the Arbitration and Conciliation Advisory Service (ACAS). The latter have a confidential and impartial telephone helpline.
I've trained managers, human resources professionals and equality & diversity specialists in this area for over 25 years. Many don't set out to discriminate but know it happens. The art (or is it science?) is in reducing the likelihood of it happening in the first place. If you're serious about weeding out discrimination from your workplace and have organisational commitment to do so, get in touch via my company website http://www.the-change-agency.co.uk
Discrimination law is a complex area and if you're in need of advice useful sites include the Equality and Human Rights Commission and the Arbitration and Conciliation Advisory Service (ACAS). The latter have a confidential and impartial telephone helpline.
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