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Discrimination in 2019

View profile for Stacey Edgley
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Discrimination in the workplace happens every day.  It is unlawful for an employer to treat an employee less favourably because of a ‘protected characteristic’ (Equality Act 2010) such as:

Race;

Sex;

Disability;

Religion or belief;

Sexual orientation;

Pregnancy and maternity;

Gender re-assignment;

Marriage or civil partnership; or

Age

Discrimination can arise in various forms.  For example an employee may feel they have been harassed or overlooked because of their age or sex.  Alternatively it maybe that the employer has put in place a policy or practice that is intended to treat everyone the same, but in practice disadvantages a group of people because of a protected characteristic such as their religion or belief. 

Pregnancy and/or sex discrimination claims often arise were an employee requests a reduction in their hours due to child care responsibilities and this is refused in circumstances were the employer cannot justify the requirement for the employee to work full-time.

If an employee is a disabled person (which is quite broadly defined under the Equality Act), the employer is under a duty to make reasonable adjustments to avoid the employee being put at a substantial disadvantage as a result of their disability. 

If an employee is successful in their claim for discrimination, the Tribunal can award compensation  based on the loss that the employee has suffered.  Unlike most unfair dismissal claims there is no upper limit.  Compensation  is not limited to financial loss but can also cover non-financial losses and in most cases this will involve an “injury to feelings” award in recognition of the upset and distress the discriminatory act has had on the employee. In assessing the scale of an injury to feelings award regard will be had to various factors including the vulnerability of the employee, the degree of hurt, distress or upset caused, the position of the person who was found to be discriminating and the seriousness of the treatment.

In the leading case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, the Court of Appeal set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands for potential awards:

The lower band: "appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence".

The middle band: "serious cases, which do not merit an award in the highest band".

The top band: "the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race". Only in "the most exceptional case" should an award for injury to feelings exceed the top of this band. 

These awards have increased substantially from 2002 when they were first introduced and the sums now awarded for the respective bands are as follows: lower band: £900 - £8,800, middle band: £8,800 - £26,300 and the top band: £26,300 - £44,000. 

The Tribunal will take into consideration whether the discrimination was a one-off incident or a course of conduct, but it will not be required to make an award in the lower band in respect of a one-off incident. It is the effect on the employee that is important.

If you have any queries on Employment Law or a Tribunal in which you may be involved call 01252 316316 and speak to a member of the Employment Team at Wheelers Solicitors LLP.  

 

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