The number of discrimination claims has been increasing. Discrimination can be subtle and it can be easy to discriminate unintentionally.
The penalty for any act of discrimination is a potentially unlimited compensatory award. An employee can bring legal proceedings for discrimination regardless of their length of service, as well as bring proceedings if they have applied for a job and are not yet your employee.
In some circumstances, doctors may be reported to the GMC for disciplinary action if they have discriminated against one of their employees.
In this area of employment law, the good intentions of an employer who discriminates are irrelevant. The main types of discrimination relate to sex, race and disability, so discrimination law is complex. The law distinguishes between direct and indirect discrimination. Direct discrimination is where an employee is treated less favourably because of their race, sex or disability. Such discrimination has no legal defence.
Indirect discrimination occurs when the employer applies a 'provision, criterion or practice', which has the effect of putting a group, such as women, at a particular disadvantage compared to others.
This type of discrimination may have a lawful defence if you can justify it. The difficulty here lies in recognising the indirect discrimination, as the following examples demonstrate.
1. THE RECEPTIONIST
Your receptionist has been employed for four years and has always worked full- time. Her child is two years old and the grandmother is no longer available to babysit. The receptionist asks if she can now work part-time, which is contrary to practice policy.
This is indirect discrimination. The surgery had a 'provision, criterion or practice' (working full-time), which disadvantages women more than men because it is a fact that more women than men are primary carers for children.
However, you may be able to justify your actions and also make them lawful if you can demonstrate it is essential that there be receptionist cover full-time and there is no other practical way of achieving that.
2. THE IT MANAGER
You are recruiting a new IT manager. The advert states that you need somebody who has an honours degree from a British university and who has excellent spoken and written English.
This appears to be indirect discrimination. It is more likely that a white British person will be a graduate from a British university and has excellent spoken and written English than perhaps a Sri Lankan.
However, can this be justified? Arguably, an IT manager will need excellent written and spoken English in order to interact with fellow professionals so that he can carry out his job. It will be much more difficult to justify the requirement that the IT manager has a degree from a British university.
If you stated you needed a candidate educated to degree level, this would not be discriminatory.
3. THE PRACTICE MANAGER
In order that the surgery can keep up with the changes in primary care, you inform your practice manager that you expect her to attend training and development courses, some of which will require her to stay away from home.
She has refused to do this because there will be nobody to look after her six-year-old child.
This looks like indirect sex discrimination. There is no clause in her contract that can be used to compel her to attend this course, but it is still a 'practice' and as such can form the basis of a sex discrimination claim.
Whether this can be justified depends on the circumstances. For example, she may be able to obtain this training locally or via correspondence, or she could be given plenty of advance notice so that she can find adequate childcare.
- Rehan Pasha is a partner with the employment team at solicitors Aaron and Partners in Chester
POINTS TO REMEMBER
- Think carefully before changing the way your employees work.
- Consider the effect of any changes and whether the changes could be discriminatory.
- If an employee is unhappy about any proposed change, listen to their objections, ask for their suggestions and try to reach an amicable solution.
- Before imposing a change against an employee's wishes, take legal advice from a specialist employment lawyer.