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How to avoid running the risk of a discrimination accusation

Barristers Michael Salter and Chris Bryden advise on how to avoid being hit by an accusation of discrimination against an employee

Barristers Michael Salter and Chris Bryden advise on how to avoid being hit by an accusation of discrimination against an employee

THE SITUATION

I am aware that I am not allowed to discriminate against certain people, but what does ‘discriminate' mean?

THE ADVICE

Employees and workers are protected from discrimination on a number of different grounds: race, sex, age, religion, sexual orientation and religion being some of the main examples. Generally discrimination is defined as ‘less favourable treatment', which, in lawyer's parlance, is known as subjecting someone to a detriment.

Such a detriment can be caused in many ways, directly or indirectly. Direct discrimination occurs when a person is subjected to a detriment because they are part of the protected category; for instance an employee is dismissed because they are a woman, or not white.

Indirect discrimination occurs where a seemingly neutral factor subjects a disproportionate number of a protected category of persons to a detriment. For instance the requirement that all employees be over six feet tall would exclude a disproportionate number of women from employment.

Further, discrimination can be caused by victimising a person – so a person who seeks to enforce rights granted by the anti-discrimination legislation, for instance, is protected from their employer taking retaliatory actions against them.

Finally, a person can be discriminated against if they are subjected to harassment – treatment that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

A classic example is making sexually offensive comments to a person.

Disability discrimination is different. It can be caused directly if an employer subjects an employee to a detriment on the grounds of their disability. However there is no concept of indirect disability discrimination, though disability discrimination includes two additional forms – disability-related discrimination and failure to make reasonable adjustments.

Disability-related discrimination occurs when an employer subjects their employee to a detriment because of something related to their disability. If the practice were to subject a receptionist with dyslexia to disciplinary proceedings because of her inability to take an accurate record of a patient's details, and if this inaccuracy was related to her dyslexia, the disciplinary proceedings would be discriminatory.

This is different from direct disability discrimination – an example of which is that dyslexic receptionists receive half the pay of non-dyslexic receptionists.

The practice will also be discriminating against disabled employees if it fails to make reasonable adjustments to its practice, conditions or workplace that would mitigate the employee's disadvantage – for instance, providing a disabled toilet or wheelchair ramp.

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