Road Legal

Employers are now required to take discrimination and harassment very seriously, to ensure equality of treatment for employees and potential employees.

Discrimination

Discrimination in the employment field is not permitted. Employees are protected against discrimination on the grounds of:

• race,  colour, nationality or ethnic origin;
• sex (which includes pregnancy, marital or civil partner status, or gender reassignment);
• disability;
• sexual orientation;
• religion or similar belief;
• age;
• part-time status; and
• trade union membership.

Discrimination can be made directly or indirectly against an employee.

Direct discrimination is when an employee is treated less favourably than another employee for a reason such as race or sex. For example, when an employer decides not to offer an applicant a job because she is female.

Indirect discrimination broadly incorporates three elements:

• Where the employer’s actions have a disproportionate impact on a particular group.
• Where the employee suffers a detriment as a member of that group.
• Where the employer cannot show objective justification.

For example, an employer’s dress code which does not allow hats or scarves to be worn while at work would indirectly discriminate against Muslim women and Sikh men.

With the exception of discrimination on the grounds of disability, employers have a statutory defence to discrimination where there is a genuine occupational requirement for a particular job.

Harassment

Harassment occurs where an employer or employee engages in unwanted conduct which has the purpose or effect of violating the dignity of the person at whom it is targeted or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Conduct shall be harassment only if, having regard to all the circumstances, including in particular the perception of the target of the conduct, it should reasonably be considered as having that effect.

Harassment is prohibited on the grounds of:

• sex;
• gender reassignment;
• unwanted verbal, non-verbal or physical conduct of a sexual nature;
• race, ethnicity or national origin;
• religion or belief;
• sexual orientation; or
• for a reason which relates to the victim's disability.

Equality in pay/terms and conditions

Men and women should receive equal pay for equal work. Therefore, if a woman and a man are employed for equal work, i.e. like work or work of equal value, the individual terms of the woman's contract must not be any less favourable than the corresponding terms of the man's contract and vice versa. The employer has a defence only if it can prove that the variation in terms is due to a genuine material factor, not the difference in sex.

Part-time workers must not be treated any less favourably than full-time workers in their terms and conditions of employment (see General HR and contracts of employment).

Maternity, paternity and adoption

Employers need to be aware of employees’ legal entitlements concerning maternity, and increasingly the rights associated with paternity and adoption.

A pregnant employee has the following rights:

• a period of 26 weeks’ ordinary maternity leave from the 11th week before the expected week of childbirth (‘EWC’);
• a period of 26 weeks’ additional maternity leave after the birth;
• statutory maternity pay for 26 weeks (employers can recover 92% of the payments made);
• paid time off to keep appointments for ante-natal care; and
• protection from dismissal

Employees who are fathers may also be eligible for two weeks’ paid paternity leave in the following circumstances:

• where the employee has at least 26 weeks’ service at the start of the 14th week before EWC;
• the employee is the father of the child or is married to or is the partner of the child’s mother; and
• the employee will have responsibility for the upbringing of the child.

An employee may also be able to apply for leave on the adoption of a child. Where a couple adopts, either but not both can take adoption leave. The other may be able to take paternity leave. In order to be eligible for adoption leave, the employee must have at least 26 weeks’ service at the end of the week of notification of being matched with the child. Ordinary adoption leave lasts for 26 weeks and additional adoption leave for a further 26 weeks.

Discrimination against an employee on the grounds of maternity may give rise to a grievance procedure or a claim in an employment tribunal.

 

Gareth Edwards is a solicitor in the Employment Department of Reynolds Porter Chamberlain LLP.