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Employment Law
- Discrimination Claims
Complaints for discrimination are on the increase. It is not an
easy area of law to understand. There can be costly results if a
claim is successful.
* Types of
discrimination
* Main forms of discrimination
* Procedure and awards
Types of Discrimination
The current law provides that employees must not be discriminated
against on grounds of sex or marital status, race or ethnic origin,
disability or trade union membership.
New legislation
is timetabled to come into force to deal with further discriminatory
matters. Although the dates are not set in stone, the chart below
provides an idea of the new areas of legislation upon which are
able to provide advice. The new regulations will also deal with
the issues of harassment and victimisation in more detail although
these types of discrimination are already pursuable in a tribunal.
Date of Legislation
Area Covered
Spring 2003 Sexual Orientation, religion and belief. Amendments
to the existing race, sex and disability discrimination legislation
will be laid before Parliament. A process of consultation will commence
on the issue of age discrimination
July 2003 Amended race regulations will be brought into force
December 2003 Regulations relating to sexual orientation, religion
and religious belief will come into force
Spring 2004 Consultation will commence regarding the age regulations
December 2006 Regulations relating to age will come into force
Main Forms of Discrimination
Discrimination comes in two main forms – direct and indirect.
Direct discrimination
occurs where the employer treats a job applicant or existing employee
less favourably on the ground of their sex, race or disability.
The applicable test in law is to apply a comparator who will be
of the opposite sex or alternative racial group. The question is
whether or not the applicant would have been treated differently
and more favourably had it not been for their sex etc. It is expected
that this definition will continue under the reformed legislation.
Indirect discrimination
occurs when 4 conditions are satisfied:
1. The employer
imposes a condition which applies to all sexes (or races)
2. The proportion of the complainant’s sexual, marital or racial
group who can comply with the requirement/condition is considerably
smaller than the proportion of the other group which can comply
3. The requirement is not justifiable
4. It is to the complainant’s detriment that they cannot comply
The law requires
a pool of comparators to determine if any discrimination has taken
place.
Disability Discrimination
relies on the same basic principles but the complainant must be
treated less favourably due to their disability. A person suffers
from a disability if they have a physical or mental impairment,
which has a substantial and long-term effect on their ability to
carry out normal everyday activities.
Procedure and
Awards for Discrimination
Complainants have 3 months to present a claim to an Employment Tribunal.
The time period starts to run from the act complained of or, a series
of acts, the last of these acts.
The current
awards for a successful case of discrimination are unlimited. The
limits applicable to unfair dismissal claims do not apply to Discrimination
claims.
Hegarty
& Co Solicitors
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