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Discrimination in the Workplace

Hardeep Kular

At HKKLAW we offer comprehensive legal advice and support on understanding and addressing discrimination in the workplace as governed by the Equality Act 2010 (which defines nine protected characteristics to shield individuals from unfair treatment), issues concerning part-time workers and fixed-term employees, as outlined in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.  These legislations ensure that every individual is safeguarded against unfair treatment based on these attributes.

Whether you are an employee or worker who has experienced discrimination and are seeking to understand more about discrimination law or need assistance in handling a discrimination claim or an employer aiming to create  an inclusive and respectful work environment and require support in implementing anti-discrimination practices, HKKLAW is here to provide expert guidance,  to guide you through every step, ensuring a fair and just workplace for all.

At HKKLAW, we are committed to fostering inclusive and respectful work environment free from discrimination. Our aim is to ensure that everyone is aware of their rights and responsibilities under the law, promoting an environment where all individuals are valued and treated fairly, regardless of their status, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Discrimination in the workplace is a significant issue that affects many individuals and undermines the principles of equality and respect that that are fundamental to a productive and positive work environment. This note aims to provide an overview of discrimination law as it applies to the workplace.

Our services and advice also extend to resolving equal pay disputes.

Protected Characteristics under the Equality Act 2010:

The Equality Act 2010 stands as a cornerstone of UK legislation, designed to consolidate and strengthen protections against discrimination. Its purpose is to ensure fairness and equality within the workplace, by identifying and safeguarding against discrimination on the basis of nine protected characteristics.

The Equality Act 2010 provides that it is unlawful to discriminate against someone because of:

  1. Age: Protecting individuals of any age from being treated unfairly because of their age or the age group they belong to or the age they are perceived to be.
  2. Disability: Protects people with disabilities, including physical and mental impairments that have a substantial and long-term negative effect on their ability to perform normal daily activities.
  3. Gender Reassignment: Protecting transgender individuals who are proposing to undergo, are undergoing, or have undergone a process (or part of a process) to change their sex.
  4. Marriage and Civil Partnership: Protects individuals who are married or in a civil partnership from being treated unfairly because of their marital status.
  5. Pregnancy and Maternity: Protects women against discrimination because of pregnancy, pregnancy-related illness, or maternity leave.
  6. Race: Protects individuals from discrimination based on their race, which includes colour, nationality, ethnic or national origin.
  7. Religion or Belief: Protects individuals from discrimination because of their religion, religious belief, or similar philosophical belief. It also protects those without a religious or philosophical belief.
  8. Sex: Ensuring equal treatment for men and women in the workplace and protecting against discrimination based on sex because of their gender.
  9. Sexual Orientation: Protecting individuals from discrimination based on their sexual orientation towards people of the same sex, the opposite sex, or either sex.

Forms of Discrimination:

Discrimination can manifest in various forms, including:

  • Direct Discrimination: Treating someone less favourably than others because of a protected characteristic.
  • Indirect Discrimination: When a workplace policy, practice, or procedure applies to everyone but disadvantages people with a particular protected characteristic.
  • Harassment: Unwanted conduct related to a protected characteristic that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
  • Victimisation: Treating someone unfavourably because they have made or supported a complaint or raised a grievance under the Equality Act, or because they are suspected of doing so.

Employer Responsibilities:

Employers have a legal duty to prevent discrimination in the workplace. This includes implementing equal opportunity policies, providing training on diversity and inclusion, making reasonable adjustments for disabled employees, and taking prompt action to investigate and resolve complaints of discrimination.

Employee Rights:

Individuals who believe they have been discriminated against can raise the issue informally with their employer, through the company’s grievance procedure, or by making a claim to an employment tribunal. It is crucial for employees to seek advice and act within the time limits for making a claim, generally within three months less one day from the date of the discriminatory act.

Conclusion:

Discrimination in any form is unacceptable and can have severe implications for individuals and workplaces. Understanding and respecting protected characteristics is essential for creating inclusive work environments where everyone has the opportunity to succeed. By fostering an environment of inclusivity and respect, employers and employees can contribute to a more equitable society.

Employers and employees alike should be aware of their rights and responsibilities under the Equality Act 2010 to combat discrimination and promote equality.

 

Other Types of Discrimination: Fixed-Term Employees, Part-Time Workers and Equal Pay

Discrimination in the workplace can also occur in less frequently discussed contexts, such as against fixed-term employees and part-time workers. Additionally, issues surrounding equal pay and terms of employment remain pivotal in ensuring fairness and equality. This section expands on these areas to provide a more comprehensive understanding of workplace discrimination.

Fixed-Term Employees and Part-Time Workers:

The Employment Rights Act 1996 and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, along with the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, are designed to prevent discrimination against part-time workers and fixed-term employees. These laws ensure that workers on part-time and employees on fixed-term contracts are not treated less favourably than their full-time or permanent counterparts, unless such treatment can be objectively justified.

Fixed Time Employees and Discrimination

Fixed-term contracts offer flexibility for both employers and employees, accommodating project-based work, maternity cover, specific tasks or temporary increases in workload. However, it is essential that fixed-term employees are afforded the same rights and protections as their permanent counterparts to prevent discrimination. In the UK, the rights of fixed-term employees are safeguarded by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (“the Regulations”). This Regulation protects those on fixed term contracts. The Regulations apply to fixed term employees only; apprentices,  agency workers and those on certain training schemes are not covered.

This guidance note focuses on the protections these Regulations offer, highlighting the rights of fixed-term employees, potential discrimination they may face and how they can seek redress.

Rights of Fixed-Term Employees:

The Regulations ensure that fixed-term employees enjoy equivalent treatment to comparable permanent employees regarding pay, benefits and opportunities for training and career progression. This includes:

  • Equitable Pay and Conditions: Fixed-term employees should receive the same level of pay and enjoy similar working conditions as their permanent peers, adjusted proportionally to their working hours.
  • Pro-rata Benefits: Access to benefits, such as pension contributions, bonuses, and annual leave, should be provided on a pro-rata basis, ensuring no less favourable treatment due to contract status.
  • Training Opportunities: Fixed-term employees must have equal access to training and professional development to support their career advancement.

 

Discrimination Against Fixed-Term Employees

Discrimination occurs when fixed-term employees are treated less favourably than permanent employees without a legitimate reason. This could manifest as disparities in pay for doing similar work, exclusion from training programs, or being passed over for promotions solely because of their fixed-term status.

Addressing Discrimination:

Fixed-term employees who believe they have experienced discrimination can:

  1. Request a Written Statement: Initially, they should ask their employer for a written explanation of any less favourable treatment.
  2. Pursue a Claim: If dissatisfied with the explanation or if the issue persists, they have the right to bring a claim to an employment tribunal, typically within three months less one day from the discriminatory act or the contract’s termination.

Employer Responsibilities:

To comply with the Regulations, employers must:

  • Inform fixed-term employees about permanent openings within the organisation.
  • Justify the use of successive fixed-term contracts; notably, a fixed-term contract may automatically become permanent after four years unless there is a legitimate reason for renewing it as a fixed-term.
  • Provide objective reasons for any differential treatment between fixed-term and permanent employees to ensure it can be legally justified.

Employers are advised to conduct regular reviews of their practices and policies to ensure they align with legal standards, and it is crucial for fixed-term employees to stay aware of their rights and the available avenues for challenging any instances of discrimination.

Dismissal

In terms of protection against dismissal for fixed-term employees, it is important to differentiate between actual dismissal and the natural expiration of a fixed-term contract. Dismissal occurs when the fixed-term contract is terminated prior to its agreed end date. Such a dismissal could be deemed unlawful if it’s primarily because the employee is on a fixed-term contract. On the other hand, the mere act of not renewing a fixed-term contract upon its completion does not, in itself, amount to a dismissal. Likewise, choosing not to renew a contract does not automatically represent unfair treatment or a detriment to the employee.

Part time workers and Discrimination

Part-time workers play a vital role in the modern workforce, contributing flexibility and diversity to the employment landscape. The protections for part-time workers under UK law are designed to ensure fairness and equality in the workplace, recognising the valuable contributions of all workers, regardless of their working hours.

In the UK, the rights of part-time workers are protected under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. This legislation ensures that part-time workers, including those classified as ‘workers,’ are not treated less favourably than their full-time counterparts, unless such treatment can be objectively justified.

Scope of  Protection: The Regulations apply to anyone working under a contract of employment or any other contract to perform work or services personally, which includes individuals classified as ‘workers.’ This broad definition ensures comprehensive protection across various employment contexts, covering not just traditional employee roles but also more flexible working arrangements.

Under the Regulations, a worker can make a claim that he/ she has been treated unlawfully if:

  • the worker is a part time worker;
  • is treated less favourably than a comparable full time worker;
  • the less favourable treatment is on the grounds that the claimant is a part time worker;
  • the treatment is not justified on objective grounds.

Key Protections Include:

  • Entitlements: to thesame pay and benefits package (on a pro-rata basis) as comparable full-time or permanent employees: entitlements to the same hourly rate of pay, bonuses, annual leave, contractual sick pay, the same access to company pension schemes
  • Maternity and Parental Rights:  the same entitlements to maternity/ parental leave on a pro-rata basis.
  • Training and Career Development: no less favourable treatment to access to training and career development opportunities.Opportunities for promotion or career advancement should not be unfairly restricted for part-time workers. Employers must ensure equal access to any opportunities for career progression.
  • Protection Against Less Favourable Treatment: Part-time workers are protected against unjust treatment that their full-time counterparts do not face. This includes exclusion from certain projects or considerations simply due to their part-time status.
  • Right not to be dismissed: because they have tried to enforce their rights under the Regulations.

Making a Claim:

Part-time workers who believe they have been treated less favourably than equivalent full-time colleagues have the right to make a claim under the following basis:

  1. Request for Written Statement: Initially, the worker can request a written statement from their employer, detailing the reasons for the treatment or terms that they believe to be less favourable.
  2. Employment Tribunal: If the issue is not resolved through internal processes, or if the worker is not satisfied with the explanation, they can bring a claim to an Employment Tribunal. It is crucial for the claim to be made within three months less one day from the date of the alleged less favourable treatment or from the end of the contract.
  3. Objective Justification: In response, the employer must demonstrate that any less favourable treatment or terms are justified on objective grounds, unrelated to the worker’s part-time status.

Therefore, provided that a part-time worker can show that the part-time status  was the effective and predominant cause of the less favourable treatment, a claim will succeed unless the employer can show some objective justification.

Employers are required to ensure that their policies and practices do not unjustly discriminate against part-time and fixed-term workers, providing them with equal opportunities and fair treatment in line with their full-time and permanent counterparts.

Equal Pay and Terms of Employment

Equal pay for equal work is a fundamental principle protected under the Equality Act 2010. This principle asserts that men and women in the same employment performing equal work must receive equal terms and conditions of employment, which includes not only basic pay but also bonuses, pension contributions, and any other benefits.

Addressing Disparities:

  • Employers are encouraged to conduct regular equal pay audits to identify and rectify any gender pay gaps.
  • Employees who suspect they are not receiving equal pay can request a written statement from their employer explaining the reasons for any disparities.
  • Disputes over equal pay can be taken to an employment tribunal, where claims must be made within six months of the end of the employment.

Conclusion:

Understanding and combating discrimination against fixed-term employees, part-time workers, and ensuring equal pay and fair terms of employment are crucial steps toward fostering a more inclusive and equitable workplace. Employers must proactively address these areas, implementing clear policies and regular audits to prevent discrimination. Meanwhile, employees should be aware of their rights and the mechanisms in place to support them in challenging any form of discrimination or inequality they may face in the workplace.