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An employer will be liable for discrimination even they did not intend to discriminate

was a J B Montagu Scholar at Middle Temple. He was called to the Bar as a non-practicing barrister in 2014. Before joining Helix Law Harry gained commercial experience at a Tax advisory firm. Harry has a Master’s in Employment Law and is an associate member of the Employment Lawyers Association.

Discrimination can generally be assessed in three categories:

  1. Direct discrimination – where A treats B less favourably than others because of a protected characteristic;
  2. Indirect discrimination – where A applies a provision, criterion or practice which discriminates against B due to their protected characteristic; and
  3. Discrimination arising from disability – Where A treats B unfavourably because of something arising in consequence to B’s disability and A can’t show that the treatment is a proportionate means of achieving a legitimate aim.

The above definitions are all cemented in the Equality Act 2010 and it is not acceptable to plead ignorance to the obligations this law creates.

In all three categories of discrimination, the Employment Tribunal will look at the employer’s conduct to determine whether they have in fact discriminated. The surrounding facts are therefore crucial and written evidence will be particularly useful. This may help to justify the employer’s conduct, for example a job applicant may have been rejected for occupational reasons, or it might support an individual’s discrimination claim.

The above definitions do not include a legal test for ‘intent’. While the employer may allege that it was not their intention to discriminate, this will not prevent an individual from bringing a successful discrimination claim. Intent may be a factor the Employment Tribunal considers when looking at the seriousness of the offence, or even when looking at any compensation to be awarded. Intent will not, however, provide an absolute defence to a discrimination claim.

The duty not to discriminate applies to job applicants as much as employees. Employers should therefore retain evidence to justify rejecting any job applicant and should adopt a formal process for any such rejections. Candidates should only be judged on the merits of their applications, rather than any external factor. If an external factor may potentially cause difficulties for the employee which cannot be overcome by implementing reasonable adjustments, then the employer will need to consult with the employee to see whether there are any suitable alternative positions. The employer should retain evidence to justify their decisions, regardless of the outcome.

Recommendation

  • Employers should regularly assess their equality and diversity policies. They should ensure staff members, particularly HR and recruitment personnel, are informed of the employer’s duty not to discriminate. Written correspondence should be considered carefully and evidence should be retained for future reference.