Types of discrimination

Direct discrimination

This occurs when one person treats another person less favourably than they would another because of a protected characteristic

e.g. an HEI or students’ union decides not to interview a Muslim applicant for a job because they assume, on the basis of his religion, that he will not be prepared to work in a bar.

e.g. an HEI does not recruit an older member of staff to a frontline student services role on the basis that they are “too old to identify with students”.  The HEI is unlikely to be able to justify this.

Discrimination based on association is also illegal

e.g. a student, whose chid has attention deficit hyperactivity disorder is refused access to a graduation ceremony because of fears about the child’s behaviour;
e.g. an employee is overlooked for promotion because other partner has undergone gender reassignment.

e.g. An employer allows all staff with children to leave work early one afternoon before Christmas to attend their children’s school play or show. They assume that an employee with a disabled child will not need this time off so do not give them the same concession. This is likely to be direct discrimination because of disability on the basis of the employee’s association with their disabled child.

Discrimination based on perception is unlawful

e.g. a member of staff refuses to work with a student because they believe that the student is gay, irrespective of whether the student is gay or not.

Combined discrimination claims

The Equality act allows people to bring a claim of direct discrimination because of a combination of two protected characteristics (not including marriage and civil partnership, and pregnancy and maternity).

e.g. a black female member of staff could bring a claim for combined race and sex discrimination, as well as separate claims. On 24 March 2011 the Chancellor of the Exchequer announced that this provision would be scrapped.

Indirect discrimination

Indirect discrimination occurs when a provision, criterion or practice appears neutral, but its impact particularly disadvantages people with a protected characteristic, unless this can be justified as a proportionate means of achieving a legitimate aim.  Indirect discrimination now extends to all the protected characteristics except pregnancy and maternity.
e.g. an employer who requires staff to commit to working from 8 pm to 11 pm every evening indirectly discriminates against women, who are more likely to be primary carers of children.

e.g. An employer insists that all employees have to be in the office by 9am or face disciplinary action. An employee has a mobility impairment that makes travelling in the rush hour difficult. Unless the employer can objectively justify the requirement to be in at that time, this may be discrimination arising from disability, because the disabled person would be treated unfavourably (being disciplined) for something connected to their disability (the inability to travel in the rush hour).This may also be a failure to make reasonable adjustments.

Harassment

The quality act outlines three types of harassment:

  • unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant, or violating the complainant’s dignity (this applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership)
  • unwanted conduct of a sexual nature (sexual harassment)
  • treating a person less favourably than another person because they have either submitted to, or did not submit to, sexual harassment or harassment related to sex or gender reassignment.
  • e.g. a member of staff makes comments about a student sexuality in a way that makes the student feel uncomfortable.

The perceptions of the recipient are very important and harassment may be deemed to have occurred even if the intention was not present, but the recipient felt that they were being harassed.

The employer is liable in the case of harassment of its employees by third parties, such as maintenance contractors, over whom the employer does not have direct control, unless the employer has taken reasonable steps to prevent the third party from doing so. This only applies if the employer knows that the employee has been harassed on at least two previous occasions.

e.g. if the HEI fails to take action when a female member of staff complains of repeated comments and unwanted jokes on the basis of their sex, the employer would be liable unless it had taken reasonable steps to prevent the contractors from doing so.

Victimisation

takes place where one person treats another less favourably because he or she has asserted their legal rights in line with the Act or helped someone else to do so.

e.g. a student alleges that they have encountered racism from a tutor, and as a result they are ignored by other staff members

e.g. a senior member of staff starts to behave in a hostile manner to another member of staff who previously supported a colleague in submitting a formal complaint against the senior manager for sexist behaviour

e.g. an employer brands an employee as a ‘troublemaker’ because they raised a lack of job-share opportunities as being potentially discriminatory.

Special circumstances for pregnancy and maternity

It is not sex discrimination against a man to provide special treatment for a women  in connection with maternity or childbirth.

e.g. An employer allows a pregnant worker to have time off not just for ante-natal appointments (which is a legal requirement) but also to attend fitness classes for pregnant women at a nearby gym. The worker makes up the lost hours at another time, which she would not have to do for an ante-natal appointment. It would not be sex discrimination to refuse a man’s request to go to a fitness class during working hours. (EHRC guidance).

The Harasment and bullying policy and procedures for staff will be updated to reflect the changes in the Equality Act.

Contact:

Elaine Dagnall
HR Business Partner (Equality and Diversity)
edagnall@brookes.ac.uk
Tel 01865 485929