Discrimination

On what grounds is an individual protected from discrimination in the workplace?

The following grounds are protected as areas of discrimination:

• age
• disability
• fixed term status
• part-time status
• race
• religion and belief
• sex
• sexual orientation

What is meant by the term ‘direct’ discrimination?

Direct discrimination is generally where the individual is treated less favourably by reason of their protected ground when compared to another person. Usually an employer cannot have a defence for treating someone less favourably, save for age.

What is ‘indirect’ discrimination?

This occurs where there is in place a condition, provision, criterion or practice that is disadvantageous to a disproportionate amount of people due to their protected area. This can be defended on the basis that it was necessary for economical, administrative or some other reason.

What constitutes harassment?

In essence, harassment is unwanted conduct which has the purpose or effect of violating the dignity of another and/or creating a degrading, hostile, intimidating and offensive environment. This conduct would be by reason of the protected area.

My employer is bullying me because I am a man. He is victimising me in that I am the only one being treated this way. Can I claim for victimisation?

Victimisation has a special meaning in law. It means that a person is treated badly because they have made a complaint of unlawful discrimination, or assisted another who is making such a complaint. You would not necessarily have a claim for victimisation but you may have a claim for sex discrimination. More information is needed to assess this. Failing that you may have a claim for harassment under the Protection from Harassment legislation.

Which party has to prove their case? Who has the burden of proof?

The party bringing the claim will have the burden of proof at first. However, it is accepted that it is not normally obvious that discrimination has taken place. To account for this a party who can establish that there are primary facts from which the Tribunal can infer discrimination will be able to pass the first hurdle and shift the burden to the other side.

Can the Respondent provide any defences to discriminatory treatment?

This depends on the type of claim being pursued. A Respondent can raise defences in certain claims such as a defence that the treatment was justified or that it was a genuine occupational requirement.

What compensation is available if I am successful?

This will depend on the facts of each individual case. Compensation is available for loss of earnings and injury to feelings. There is also the possibility of claiming aggravated damages. Compensation in a discrimination case is potentially unlimited, although the likely amount will be assessed so a realistic figure is available.

It is also possible to receive a declaration that you were discriminated against, or a recommendation of what the employer is to do in the future to avoid discriminatory behaviour.

What counts as a disability according to the law?

You have a disability if you have a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. Possible examples of a disability include epilepsy, chronic fatigue syndrome or 'ME', asthma, depression, HIV, cancer, diabetes, multiple sclerosis and heart conditions, hearing or sight impairments, or a significant mobility difficulty and mental health conditions or learning difficulties.

How can a disabled person be discriminated against?

This is similar to other discrimination types but an individual may also be discriminated against by reason of their disability if the employer fails to make reasonable adjustments. These adjustments may be reasonable to make to the workplace itself, or the way in which an individual carries out their duties.

[ Back to top ]