Different Types of Discrimination
Direct discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have or because they associate with someone who has a protected characteristic.
Discrimination by association
Associative discrimination now applies for all practical purposes to all the discrimination strands. It did apply already to race, religion or belief and sexual orientation and has been extended to cover age, disability, gender reassignment and sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic.
An example of associative discrimination might be a non-disabled employee who is discriminated against because of action she needs to take to care for a disabled dependant. This incorporates the European Court of Justice´s July 2008 ruling in the Coleman v Attridge Law case, where Sharon Coleman, a legal secretary, lodged a claim after alleging she was subject to harassment and discrimination after asking for time off to care for her disabled son.
The Act extends disability discrimination to `Discrimination ARISING from disability´. This is a new provision. The clause provides that it is discrimination to treat a disabled person in a particular way which, because of his or her disability, amounts to treating him or her badly and the treatment cannot be shown to be justified. For this type of discrimination to occur, the employer or other person must know, or could reasonably be expected to know, that the disabled person has a disability. Also the person who treats the disabled person in that way may still be liable for discrimination under this provision, whether or not the duty to make reasonable adjustments has been complied with.
The protection by association could have implications in relation to requests for time off or flexible working, parking permits for student parents with disabled children, etc.
Perceptive discrimination will now apply for all practical purposes to all the discrimination strands. This already applies to age, race, religion or belief and sexual orientation and has been extended to cover disability, gender reassignment and sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
This already applies to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership and has been extended to cover disability and gender reassignment. Indirect discrimination is when a condition, rule, policy or even a practice applies to everyone, but has a disproportionate impact on people with a protected characteristic. Indirect discrimination can be justified if we can demonstrate that we acted reasonably for a sound business reason: i.e. that it is `a proportionate means of achieving a legitimate aim´. A legitimate aim might be any lawful decision, but if there is a discriminatory effect, the sole aim of reducing costs is likely to be unlawful. Being proportionate really means being fair and reasonable, including showing that you´ve looked at `less discriminatory´ alternatives to any decision you make.
Equality Impact Assessments could be a useful tool in this area, to demonstrate consideration of different options. These will continue to be rolled out across the University accompanied by staff training if required.
Harassment is "unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual´s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual".
Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association.
Harassment will apply to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. However, because of the overlap with sex and sexual orientation discrimination, for practical purposes, employers should assume the same protection will be given to people with these characteristics as for other protected characteristics.
Third party harassment
This already applies to sex and is now extended to cover age, disability, gender reassignment, race, religion or belief and sexual orientation. The Equality Act makes us potentially liable for harassment of our employees by people (third parties) who are not employees (for example, contractors or external trainers. Third parties can also include students). Strict requirements for third party harassment means that one-off incidents may still occur without the employee having recourse to complain: we will be liable however when harassment has occurred on at least two previous occasions, and we are aware that it has taken place and have not taken reasonable steps to prevent it from happening again.
Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. There is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint under the Act.