Discrimination
The main areas of discrimination that are likely to affect employers are sex and disability. Remember, however, that there are other instances where an employer may be considered to act “discriminatory”, for instance where someone is of a particular age, religion or race; a member of a trade union; or an someone who is disciplined, disadvantaged or dismissed because of their pregnancy, sexual orientation or after making complaint about health & safety.
Take advice in all circumstances when dealing with an employee in any situation that is “out of the ordinary”
The Sex Discrimination Act 1975 applies to all employers, regardless of size from the moment the contract of employment or contract of services is entered into. The Act defines Employment as ‘employment under a contract of service [i.e. a contract of employment] or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be constructed accordingly’ (s.82 (1) SDA). Therefore self-employed, casual workers, and workers supplied by an employment business, doing work for the ‘employer’, are included within the scope of the Act.
Proposed employees (responding, for example to an advertisement) can be protected by the Act.
Ex-employees are also protected in respect of sex discrimination.
Someone who is homosexual or transsexual may now be able to bring a claim under this Act.
The Disability Discrimination Act 1995 (Amendment) Regulations 2003 (S1 2003 No.1673) came into force in October 2004. Disabled employees benefit from enhanced protection The amendments to the 1995 Act are required under the EC General Framework Directive for Equal Treatment.
The main changes brought about by 2003 Regulations are:
(a) A new definition of direct discrimination bringing it into line with race discrimination and sex discrimination legislation.
(b) A clearer definition of probation and of harassment.
(c) Removal of the jurisdiction defence in respect of failures to make reasonable adjustments.
(d) Changes to the duty to make reasonable adjustments.
(e) Protection for employees who are constructively dismissed.
(f) Changes to the burden of proof at tribunal.
(g) Protection of employees after termination
(h) The removal of the small employers exemption.
(i) Extension of the protection of the 1995 Act to categories of workers and occupations previously excluded, i.e. employment on ships, planes and hovercrafts, fire fighters, prison officers, police officers, business partnerships and barristers.
(j) Enforcement powers to the Disability Rights Commission (DRC) in respect of discriminatory advertisements.
Since October 1999, service providers have had to make reasonable adjustments for disabled people, such as providing extra help or making changes to the way services are delivered. From 1 October 2004, service providers may have to make other reasonable adjustments to the physical features of their premises to overcome any barriers to disabled people preventing them form using the service.
Courts have highlighted the problems caused by the absence of any evidence of discrimination and have recognised that a person who complains of unlawful discrimination faces some difficulties. Not many employers will admit to discrimination. The tribunal is entitled to draw an inference of discrimination from its primary finding of fact (Anya v. University of Oxford [2001] IRLR 377). If no explanation is put forward by the employer, or the tribunal considers that the explanation to be inadequate or unsatisfactory, it will be able to draw such an inference. The tribunal’s conclusion will therefore be based on the balance of probabilities. (House of Lords Zafar v. Glasgow City Council [1998] IRLR 36).
Now, in complaints of sex discrimination, the burden is initially on the complainant to establish facts from which the court may then presume that there has been discrimination. Thereafter, the burden shifts to the Respondent - the person who has allegedly carried out the discrimination against the complainant - to prove that there has been no such discrimination.
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