DISCRIMINATION AT WORK
The recent case of Sky Sports and Andy Gray conveniently brings
into focus the discrimination legislation.
It is clear that less favourable treatment of women constitutes
sex discrimination, which is unlawful. People need to be
careful not only with what they say, but what they write. The
excessive use of e-mail communication and social network chatter
makes the possibility of careless words greater than ever.
The motto has to be "think before you speak or before you
Tweet".
You may find it helpful to have the background to the law of
discrimination which has recently altered.
Discrimination Law
On the 1st October 2010 the Equality Act 2010 came into
effect. This consolidates and revises the existing law on
discrimination some of which has been with us for nearly 40
years.
The revised wording of the legislation is likely to throw up
many problems.
The legal meaning of discrimination has changed, and some of the
familiar concepts of discrimination such as harassment and
victimisation have also changed. The law now lists a series
of protected characteristics. In simple terms it is now the
case that "a person discriminates against another if, because of a
protected characteristic, they treat the other less
favourably".
The list of protected characteristics include :-
(i) Age.
(ii)
Disability.
(iii) Gender
reassignment.
(iv) Marriage and
civil partnership.
(v) Pregnancy and
maternity.
(vi) Race.
(vii) Religion or religious
belief.
(viii) Sex or sexual
orientation.
A discrimination may be obvious. An example is an advertisement
for a job headed "Wanted Girl Friday". This term
clearly should no longer be used by any Employer because it
discriminates against all male job applicants.
If the advert is not obviously discriminatory then a claim
can instead be made of indirect discrimination. Section 19 of
the Equality Act 2010 enables a Claimant to bring a claim of
indirect discrimination if the Claimant can show that by virtue of
their protected characteristic, they will be put at a relevant
personal disadvantage by the Employer`s requirements.
An example is a job advertisement for "a recent school
leaver". Many persons would be entitled to complain that this
is age discrimination because the job advertisement excluded the
possibility for them to apply as they left school years
earlier and are thus being excluded from applying for the
vacancy.
Settlement of Disputes
The Equality Act 2010 will throw up many problems in the coming
months. The one that is currently giving cause for problems
is the implementation of the provisions that apply to a Compromise
Agreement. As currently drafted, the provisions for
Compromise Agreements appear to leave a loophole in the law when
the parties want to settle a claim for discrimination under the
Equality Act 2010.
As a result, the Law Society issued a Practice Note for
Solicitors on Section 147 of the Equality Act 2010 on the 13th
January 2011 drawing attention to the ambiguity in this Section,
and outlining the alternatives that employers and employees'
lawyers may have to use if any settlement of a discrimination claim
is to be legally binding. A Compromise Agreement precludes a
claim to an Employment Tribunal if it is validly put into effect,
but under the Equality Act wording, substantial doubt has
been introduced as to the status of the person who may advise the
employee on a valid Compromise Agreement.
At the present time, there is concern whether the Solicitor who
was instructed by the employee to make a claim can validly then
sign a Compromise Agreement as the requisite independent adviser
necessary to make the Compromise Agreement a legally binding
document on the employee. As the purpose of a
Compromise Agreement is to create certainty and avoid the matter
being referred to an Employment Tribunal, this uncertainty created
by Section 147(5) of the Equality Act 2010 is to be deplored.
However, until that uncertainty is resolved, employers and
employees will need to discuss with their Solicitor the risk
involved in entering into any Compromise Agreement that refers to
the Equality Act 2010, and how to deal with that risk before
concluding any Compromise of an Equality Act claim.
Should you require more information, please contact Chris
Atkinson.