Rights at work – John Halson

Definition of unlawful discrimination because of pregnancy and maternity

It is unlawful to treat a pregnant woman unfavourably because of her pregnancy or because of a pregnancy related  illness. It is also unlawful to treat a woman unfavourably because she is on compulsory maternity leave.  In addition, it is also unlawful to treat a woman unfavourably becasue she is exercising, seeking to exercise, has exercised or sought to exercise the right to ordinary or additional maternity leave.

Scope of unlawful discrimination because of pregnancy or maternity

The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.

In some circumstances an employer may be able to justify less favourable treatment.

It is also unlawful to victimise someone for complaining about pregnancy or maternity discrimination

Harassment

Harassment is defined as unwanted conduct related to pregnancy or maternity, which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Enforcing rights

Claims of unlawful discrimination can be brought by job applicants, employees, workers, contractors, and others by issuing a claim in the Employment Tribunal. there is no qualifying period of employment before a claim can be made, but any claim must be registered with the Tribunal within 3 months of the act of discrimination, or where there has been a series of incidents which can be characterised as a single act of discrimination, within 3 months of the latest incident of discrimination.

Before sending a claim to the employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS Conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the Employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

In some circumstances a Tribunal will allow a claim to proceed even though it is brought later than 3 months from the date of the incident.  A Tribunal will weigh up the interests of the employee and employer to decide whether it is “just and equitable” to allow a late claim to be heard.

Employers are liable for the discriminatory conduct of their employees even if the employer did not know about it at the time. Exceptionally, if an employer has done all it can do to prevent unlawful discrimination, it may be able to avoid liability.

Claims can also be brought against the individuals who caused the discrimination. Employees might choose to do this because they want the individual to be liable for what they did,  if there is a risk that the employer can avoid liability, of if there is a risk of the employer’s business going into liquidation.

Links

Parental and maternity rights page

ACAS guidance

A link to all relevant legislation.

Equality and Human rights Commission

Maternity Action

Working families

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

The law gives protection to employees or workers who make “protected disclosures” (sometimes known as “whistleblowers”).

The definition of “worker” is specially extended in whistleblowing cases and can cover people who work through an agency, their own company or an “umbrella” company. This is confirmed in a recent case.

This makes it unlawful to victimise or dismiss someone by reason of the fact that they have made a protected disclosure.

A protected disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—

(a)     that a criminal offence has been committed, is being committed or is likely to be committed,
(b)     that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject
(c)     that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d)     that the health or safety of any individual has been, is being or is likely to be endangered,
(e)     that the environment has been, is being or is likely to be damaged, or
(f)     that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

To be protected the disclosure must be made in good faith to either the employer or the person or organisation who is accused of being in the wrong.

Alternatively if an employee believes the information comes within the responsibility of any of a number of specified bodies, a disclosure to one of those bodies will count as a protected disclosure. They are listed in the Schedule to the Public Interest Disclosure (Prescribed Persons) Amendment Order.

Sometimes a disclosure will be protected if made to someone other than the employer or one of the prescribed bodies.

In order to qualify for protection it must have been reasonable to have made the disclosure and it must be the worker’s reasonable belief that if he made it to the employer he would be subjected to a detriment, that evidence will be concealed, or that he has already disclosed it to the employer.

Protection of workers who make a protected disclosure

A worker has the right not to be subjected to a detriment in their work if they make a protected disclosure.

An employee who is dismissed for making a protected disclosure is regarded as unfairly dismissed.

Enforcing Rights

There is no minimum qualifying period of employment required for an employee to bring a claim in the Employment Tribunal, in respect of either of these potential claims, but the claim must be received by the Tribunal within 3 months of the dismissal or detriment, or within the extended period provided for through the compulsory ACAS conciliation procedure which requires anyone bringing a claim to register for pre claim conciliation first.

Before sending a claim to the Employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the Employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

Links

ACAS guidance

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

What limits are there on working time?

The working Time Regualtions provide the following:-

· Right to breaks during working hours
· A maximum number of hours in a working week
· A maximum number of hours for night workers
· Minimum breaks between shifts
· Minimum weekly breaks
· Right to paid holiday (see separate holidays)

Breaks during a shift

Workers are entitled to a 20 minute break after 6 hours work.

A young worker (Age 16 – 18) is entitled to a 30 minute break after 4.5 hours of work.

Minimum Daily and weekly Breaks

A worker is entitled to a minimum of 11 hours break between shifts (12 hours for a young worker, age 16 – 18)

A worker is entitled to a minimum of 24 hours break once a week or 48 hours one a fortnight (2 days for a young worker, age 16 – 18)
Further details in relation to rest breaks

Different regulations apply to workers in air, sea or road transport

Road Transport

Air Transport

Sea Transport

Maximum working hours

An employee cannot be required to work an average of more than 48 hours per week unless they have previously opted out in writing.

To calculate whether a worker has exceeded the limit, an average is taken over 17 weeks.

After a worker has signed an agreement to opt out of the 48-hour limit, they can opt back in, but the employer is entitled to require up to 3 months notice that an employee wants to cancel the opt out, by stating this in the original opt out agreement. If no notice period is given in the opt out agreement, the employee only needs to give 1 week’ notice.

A young worker (Age 16 – 18) cannot be required to work more than 8 hours in any one day, nor more than 40 hours in any one week. No opt out is available in respect of young workers.

More details on the 48-hour maximum working week

Young Workers

More details on the rights of young workers

Night Workers

Workers who regularly work at nigh (between 10 p.m. and 6 a.m.) cannot be required to work more than an average of 8 hours in any 24 hour period.

If their work is involves special hazards or heavy physical or mental strain then they cannot be required to work more than 8 hours in any 24 hour period

Night workers are also entitle to free health assessments.

Further details for nightworkers

Sunday working

Further details

ACAS guide

Holiday rights

Workers have the right to a minimum of 5.6 weeks paid holiday. Bank Holidays can form part of the 5.6 weeks.

Further details see “Holiday Rights.” 

How the Working Time Regulations can be enforced

Employers are obliged to keep records of working time for each employee.
The Health & Safety Executive, Local Authorities and various transport authorities have the power to take enforcement action, make inspections, serve notices on employers and prosecute offences under the Working Time Regulations.

However, in the vast majority of cases, workers enforce their rights by starting a claim in the Employment Tribunal. A Tribunal can award compensation to employees where employers breach the regulations. Any claim must be brought within 3 months of the most recent breach in the Working Time Regulations.

In some cases an employee may be able to claim that a breach of the Regulations entitles them to resign and claim unfair “constructive” dismissal. See Constructive Dismissal

Protection of workers who assert their rights

A worker has the right not to be subjected to a detriment in their work if they refuse to work in breach of the regulations, refuse to give up a right under the regulations or bring a claim asserting that the employer is in breach of the Regulations.

An employee who is dismissed for asserting their rights in this way or bringing a claim is regarded as unfairly dismissed.

Enforcing rights

There is no minimum qualifying period of employment required for an employee to bring a claim in the Employment Tribunal, in respect of either of these potential claims, but the claim must be received by the Tribunal within 3 months of the dismissal or detriment.

Before sending a claim to the Employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS Conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the Employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application from has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

Links

ACAS Guidance

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Introduction to unfair dismissal

Claims for Unfair Dismissal are brought in the Employment Tribunal.

If an Employment Tribunal decides an employer has acted unfairly it will normally make a finding of unfair dismissal and an order for compensation and has the power to order the employee to be reinstated.

If an employee resigns in circumstances where they are justified in doing so because of the employer’s conduct, this is know as “constructive dismissal.” Most constructive dismissals are also unfair dismissals.

Who is protected against unfair dismissal?

The protection against being unfairly dismissed only covers employees, it does not apply to people who work on a self employed basis even though they might be classed as “workers” and have certain rights under the Employment rights Act 1996.

Employees also must have 2 years continuous employment before they are protected from being unfairly dismissed. When calculating the period of employment, the minimum period of notice of 1 week is added, so anyone who is dismissed with immediate effect, actually qualifies after 1 year and 51 weeks!

Unfair Dismissal: Potenitally fair reasons for dismissal

If an employer wishes to avoid a finding of unfair dismissal, it must first of all have a potentially fair reason to dismiss. The law states that the following are potentially fair reasons:

1. misconduct;
2. redundancy;
3. capability (this includes either sickness absence or ability to do the job);
4. qualifications;
5. if the continued employment of the employee would be unlawful.

There is also a residual category called “Some other substantial reason” which can apply to a limited number of situations which do not fit into these categories. This includes retirement where the employer has an objectively justified contractual retirement age.

Retirement

Retirement is no longer a potentially fair reason for dismissal. In some limited circumstances an employer who has a contractual retirement age may be able to justify requiring am employee to retire at that age.

Retirement

Unfair Dismissal: acting reasonably

It is unusual for findings of unfair dismissal to be based on the employer failing to rely on a potentially fair reason for dismissal. However, an employer must also ensure that they acted reasonbly in relying on the fair reason to dismiss. Otherwise, despite having a fair reason for dismissal the result will be an unfair dismissal.

Most findings of unfair dismissal arise from the employer going wrong in the way they go about the dismissal. There are different steps expected of an employer depending on the reason chosen, and it is the failure to follow the correct steps which normally renders a dismissal unfair

Click the link below to see what is expected in the most common categories relied on when defending claims of unfair dismissal:

Misconduct Redundancy Capability(sickness) Capability (Other)

ACAS Code of Practice

In the case of Misconduct or Capability an employer is expected to follow the ACAS code of Practice

Remedies for unfair dismissal

If an employee succeeds in winning a claim of unfair dismissal they are entitled to a basic award (similar to a redundancy payment) if they have not already received a redundancy payment. See ready reckoner, although note that an employee with only one year’s continuous employment is entitled to a basic award if they win a claim of unfair dismissal, even though if they had been made redundant they would not have qualified for a redundancy payment.

An employee who has been unfairly dismissed by reason of redundancy will not get a basic award if they have already been paid the correct redundancy payment.

They are also entitled to compensation in respect of their financial losses which usually comprises their loss of earnings, but can include other losses and expenses.

Employment Tribunals will normally make a nominal award for “loss of statutory rights.” This is based on the loss of right to claim unfair dismissal and loss of right to a redundancy payment in the first 2 years of their next job.

Reinstatement of an unfairly dismissed employee

An Employment Tribunal  can also order reinstatement of an unfairly dismissed employee but this is discretionary and even if an employee asks for reinstatement will not necessarily be ordered, even though the Employment Tribunal has found that the employee was unfairly dismissed. If an employee is not reinstated and is still suffering ongoing loss of earnings, an award for future losses can be made.

Maximum and average awards for unfair dismissal

The most an Employment Tribunal has the power to award for an employee’s losses for unfair dismissal is 1 year’s salary subject to a maximum of  £76,574. In practice most unfair dismissal awards are considerably lower.  In 2012 – 2013 the median average award in unfair dismissal claims was £4,832.

Possible reasons for reducing an unfair dismissal compensation award

A compensatory award in an unfair dismissal case may be less than the employee’s actual losses for any of the following reasons:-

• If the employee has not made sufficient effort to find new employment following their unfair dismissal
• If the employee had not been unfairly dismissed, their employment would have come to an end at a date earlier than the hearing date anyway even if the employer had acted fairly
• In an unfair dismissal for  misconduct case the employee has been partly or wholly to blame for their own dismissal (The employer can be found to have unfairly dismissed an employee even when the employee is to blame!)
• If the employee has already been given a severance payment in excess of their entitlement, any extra can be deducted from the unfair dismissal award.

How to bring a claim of Unfair Dismissal

Claims of unfair dismissal are brought in the Employment Tribunal.

There are strict time limits on bringing a claim. The claim must be received by the Employment Tribunal within 3 months of the date of dismissal even where the employee has appealed against the dismissal. The employee does not have to wait for the appeal to be concluded before bringing a claim. The time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the compulsory ACAS conciliation procedure. The Employee will not miss the deadline as long as they have registered with the ACAS conciliation procedure within 3 months of the date of dismissal, but there are still strict time limits for the employee to submit the case to the Employment Tribunal once that period of conciliation has come to an end.

An application to an Employment Tribunal must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission, If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing the application will not be accepted and it will be returned to the employee.

Links relating to Unfair Dismissal

ACAS guidance

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Transfer of Undertakings

The purpose of the Transfer of Undertakings (Protection of Employment) Regulations are to protect the employment rights of employees when the place they work is taken over.

The transfer can take place as a result of a sale of a business or a “service provision change” which includes outsourcing a service, bringing an outsourced service “in house” or when there is a change in the contractor carrying out a particular contract.

It does not include a takeover of a company by new majority shareholders because the company remains the employer.

The Effects of a transfer

Anyone who buys a business or tenders for a contract must ensure they are fully advised of the effects of TUPE because it’s effect in many cases will result in them taking on the existing workforce on their existing terms and conditions.

It is not only the employees who transfer but also all liabilities which means that if there is any claim which an employee may have against the previous employer, after the transfer the employee can make the claim against the new employer.

In certain circumstances the new employer can claim from the old employer, but where a business is sold it is wise for the new employer to seek indemnities from the old employer.

Duties of the former employer

Before the transfer takes place the former employer has a duty to provide information about the employees to the new employer.

The former employer also has a duty to consult with employees representatives about the transfer. If this is not done, the employees may be able to claim compensation of up to 13 weeks pay from the new employer.

There is no obligation on an employee to agree to be transferred but if this happens then the employee’s employment is deemed to come to an end when the transfer takes place, but the employee does not normally have any right to claim either unfair dismissal nor a redundancy payment.

Dismissal

If an employee is dismissed by reason of the transfer then the dismissal is automatically unfair.

If an employee is dismissed due to a reason connected with a transfer the dismissal can only be fair if it is for an “economic, technical or organisational reason requiring changes in the workforce.” This might be the case where the new employer does not require as large a workforce. However, it will be up to the new employer to make redundancies and carry out the redundancy consultation and selection process fairly. See “Making a redundancy dismissal fair.”

Terms and conditions

For employees who do transfer, their terms and conditions must be preserved. Even if the employee signs to say they agree to a change in terms and conditions, any detrimental changes to their terms and conditions are void. There is no time limit on how much time must pass before changes can be made, if the changes are because of the transfer, they are void no matter how much time has gone by since the transfer took place.

Terms and conditions can be changed as a result of a transfer if the reason for the change is for an “economic, technical or organisational reason requiring changes in the workforce.” A change in the workforce usually requires a reduction in employees so this is not an exception which is widely available to employers.

Links

The regulations

Government guide to the regulations

Government guide on disclosure of employee information

ACAS guide on handling TUPE transfers

ACAS flowchart

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Legal Effect of sickness absence

An employee who is absent due to sickness remains an employee until either they resign or the employer dismisses them.

Their sickness absence does not affect their entitlement to holiday pay.

They are not required to work, but do have a duty to remain contactable by the employer and to keep the employer informed.

Notification

An employer is entitled to require the employee to notify them by a particular time if they are going to be off sick.

An employer is entitled to ask for a self certification form if the employee’s sickness lasts more than 3 days and for a doctor’s note if it lasts more than 1 week.

Sick pay

If an employee’s contract does not provide for them to be paid whilst off sick then they are entitled to Statutory Sick Pay from the 4th day of sickness absence for a period of up to 28 weeks (after which they need to claim Incapacity Benefit).

An employer is entitled to seek information from an employee about their sickness and require them to attend meetings (if the employee is well enough to attend a meeting).

Disability and Reasonable Adjustments

If an employee has a disability, the employer should consider whether there are any “reasonable adjustments” which can be made which would enable the employee to return to work. In appropriate cases these might include allowing the employee to work from home or temporarily altering the working hours or allowing a “phased return” to work. For further information see Disability Discrimination

Dismissing an employee who is off sick

An employee who is off sick can still be dismissed and that dismissal will be fair provided the employer has a fair reason and acts reasonably by following the correct procedure.  See  “Unfair Dismissal” and in particular dismissal on the grounds of “Capability.”

To dismiss fairly it is normally necessary for an employee to be invited to a meeting. This should still be done, but in many cases the employee will be unable to attend a meeting. The employer should consider alternatives such as:-
1. Postponing the meeting if the employee is likely to be well enough to attend a meeting in the near future.
2. Arranging a home visit to meet at the employee’s home (this would normally be presented as an option to the employee)
3. Allowing the employee to send someone on their behalf to attend the meeting
4. Conducting the meeting by way of a telephone call.

Dismissing an employee because of sickness

An employee who is off sick for a prolonged period of time can be fairly dismissed if they are unlikely to be well enough to return to work within a reasonable time.

What amounts to a reasonable time depends on the nature of the job, the specific difficulties encountered by the employer in covering for the absence and the size and administrative resources of the employer.

However, even where an employer is easily able to cover the absent employee’s work and even where it costs the employer nothing to keep the job open, an employer is not expected to have to keep the job open indefinitely.

See “Dismissal on the Grounds of Capability.”

Where the employer has caused the employee’s sickness

In some cases, the employee’s sickness absence may have been caused by the employer, for example due to an industrial accident or industrial disease. This does not mean that the employer cannot fairly dismiss, although if the employee is claiming damages for the injury in a Court case they will also be able to claim their loss of employment if they are dismissed.

In cases where the sickness absence is caused by the employee’s treatment at work, the employer will be expected to investigate this and seek to resolve this before considering dismissal.

Frequent short term sickness absences

An employee who has frequent short term absences can be dismissed fairly even if no one absence would be long enough to justify dismissal on its own. Before an employer can dismiss for this reason the employee needs to be told what level of sickness absence is not acceptable and given the opportunity to improve their sickness absence levels.

The employer should investigate whether or not the employee has a disability. If so, then it might be a “reasonable adjustment” for the employer to discount any sickness absences which are related to that disability. For further information see Disability Discrimination.

Some employers have a sickness absence management procedure which states the level of sickness absences which can be tolerated and provides a series of warnings to operate if the rate of sickness absence does not improve. The final stage is dismissal. This has the advantage to both parties of making it clear the levels of sickness absence which can be tolerated and the consequences of sickness exceeding those levels.

Links

ACAS guide

ACAS guide for employers

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Definition of unlawful discrimination because of sexual orientation

It is unlawful to treat a person less favourably because of their sexual orientation, their perceived sexual orientation or because they associate with someone of a particular sexual orientation (direct discrimination) and unlawful to impose a provision, criterion or practice which puts persons of a different sexual orientation at a disadvantage when compared to others (Indirect discrimination).

Scope of unlawful discrimination because of sexual orientation

The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.
In some circumstances an employer may be able to justify less favourable treatment.
Sexual orientation related harassment is also unlawful. Harassment is defined as unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment.

It is also unlawful to victimise someone for complaining about sexual orientation discrimination.

Enforcing rights

Claims of unlawful discrimination can be brought by job applicants, employees, workers, contractors, and others by issuing a claim in the Employment Tribunal. There is no qualifying period of employment, before a claim can be made, but any claim must be registered with the Tribunal within 3 months of the act of discrimination, or where there has been a series of incidents which can be characterised as a single act of discrimination, within 3 months of the latest  incident of discrimination.

Before sending a claim to the Employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS Conciliation procedure within 3 months of the date of the indicent complained of, but there are still strict time limits for the employee to submit the claim to the Employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

In some circumstances a Tribunal will allow a claim to proceed even though it is brought later than 3 months from the date of the incident. A Tribunal will weigh up the interests of the employee and employer to decide whether it is “just and equitable” to allow a late claim to be heard.

Employers are liable for the discriminatory conduct of their employees even if the employer did not know about it at the time. Exceptionally, if an employer has done all it can do to prevent unlawful discrimination, it may be able to avoid liability.

Claims can also be brought against the individuals who caused the discrimination, employees might choose to do this because they want the individual to be liable for what they did, if there is a risk that the employer can avoid liability, or if there is a risk of the employer’s business going into liquidation.

Links

ACAS Guide

Government guidance

Equality and Human rights Commission

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Definition of sex discrimination

It is unlawful to treat a person less favourably on the grounds of their gender, their perceived gender or their association with an individual of a particular gender (direct discrimination). It is also unlawful to impose a provision, criterion or practice which puts persons of a different gender at a disadvantage when compared to others (Indirect discrimination).

Scope of unlawful sex discrimination

The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.

In some circumstances an employer may be able to justify less favourable treatment.

It is also unlawful to victimise someone for complaining about sex discrimination.

Common types of sex discrimination

Pregnancy related treatment

It is unlawful sex discrimination to discriminate against a woman for a pregnancy related reason. This might be connected with pregnancy, pregnancy related sickness, attending antenatal classes, maternity leave, or a miscarriage or termination. There is also special provision for pregnancy and maternity discrimination within the Equality Act 2010.

For more information see pregancy or maternity discrimination and  Maternity & Parental Rights

Sexual harassment

Sexual harassment is also unlawful. Sexual Harassment is defined as unwanted conduct related to a person’s sex or of a sexual nature which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment.

Refusal to allow flexible working

This is an example of indirect discrimination. Requiring an employee to work certain hours constitutes a requirement which may put a woman at a disadvantage if, for example, child care responsibilities make this difficult to comply with.

However, if an employer can justify the requirement, it will not amount to unlawful indirect discrimination.

For more information on applying for flexible working see flexible working rights

Enforcing rights

Claims of unlawful discrimination can be brought by job applicants, employees, workers, contractors, and others by issuing a claim in the Employment Tribunal. There is no qualifying period of employment, before a claim can be made, but any claim must be registered with the Tribunal within 3 months of the act of discrimination, or where there has been a series of incidents which can be characterised as a single act of discrimination, within 3 months of the latest  incident of discrimination.

Before sending a claim to the Employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission. If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

In some circumstances a Tribunal will allow a claim to proceed  even though it is brought later than 3 months from the date of the incident. A Tribunal will weigh up the interests of the employee and employer to decide whether it is “just and equitable” to allow a late claim to be heard.

Employers are liable for the discriminatory conduct of their employees even if they did not know about it at the time. Exceptionally, if an employer has done all it can do to prevent unlawful discrimination, it may be able to avoid liability.

Claims can also be brought against the individuals who caused the discrimination, employees might choose to do this because they want the individual to be liable for what they did, if there is a risk that the employer can avoid liability, or if there is a risk of the employer’s business going into liquidation.

Links

ACAS guidelines and publications

Government guide

Equality and Human rights Commission

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Dismissal by reason of retirement is no longer a potentially fair reason for dismissal . An employer with a contractual retirement age who can justify it would have to rely on the residual category of “some other substantial reason” if they are going to justify a retirement dismissal.

To justify a contractual retirement age an employer must be able to show that having a blanket retirement age which applies to all staff is a proprtionate means of ahieveing a legitimate aim.  In most circumstances this is llikely to be difficult for employers to justify, when employees’ ability continue to to do their job can be assessed individually rather than applying a set retirement age.

Links

ACAS Guidance on dismissal for retirement.

The Employment Equality (Repeal of Retirement AgeProvisions) Regulations 2011

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.

Discrimination on the grounds of religion or belief

Definition of discrimination because of religion or belief

It is unlawful to treat a person less favourably because of their actual or perceived religion, religious belief, or similar philosophical belief or because they associate with someone with a particular  religion, religious belief, or similar philosophical belief (direct discrimination).

It is also unlawful to impose a provision, criterion or practice which puts persons of a different religious or philosophical belief at a disadvantage when compared to others (Indirect discrimination).

Scope of unlawful discrimination because of religion or belief

The scope of unlawful discrimination against job applicants and employees includes prohibition of discrimination in offering employment, in the terms of employment, refusing employment, in the way the employer provides access to promotion, transfer, training or receiving any other benefit, subjecting a person to a detriment or dismissing them.

In some circumstances an employer may be able to justify less favourable treatment.
Religious related harassment is also unlawful. Harassment is defined as unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment.

It is also unlawful to victimise someone for complaining about discrimination on the grounds of religion or belief.

Enforcing rights

Claims of unlawful discrimination can be brought by job applicants, employees, workers, contractors, and others by issuing a claim in the Employment Tribunal. There is no qualifying period of employment, before a claim can be made, but any claim must be registered with the Tribunal within 3 months of the act of discrimination, or where there has been a series of incidents which can be characterised as a single act of discrimination, within 3 months of the latest  incident of discrimination.

Before sending a claim to the Employment Tribunal the employee must have a certificate from ACAS confirming that conciliation has been attempted. In some circumstances, the time for bringing a claim can be extended as long as the employee has registered for pre claim conciliation with ACAS, using the mandatory ACAS Conciliation procedure within 3 months of the date of the incident complained of, but there are still strict time limits for the employee to submit the claim to the employment Tribunal once that period of conciliation has come to an end.

Any claim to an Employment Tribunal must include certification from ACAS that conciliation has been attempted and must be accompanied by the Employment Tribunal fee or a valid and fully evidenced application for a fee remission, If any of these are missing, or if the application form has not been correctly completed or if documents or information is missing, the application will not be accepted and it will be returned to the employee.

In some circumstances a Tribunal will allow a claim to proceed even though it is brought later than 3 months form the date of the incident. A Tribunal will weigh up the interests of the employee and employer to decide whether it is “just and equitable” to allow a late claim to be heard.

Employers are liable for the discriminatory conduct of their employees even if they did not know about it at the time. Exceptionally, if an employer has done all it can do to prevent unlawful discrimination, it may be able to avoid liability.

Claims can also be brought against the individuals who caused the discrimination. Employees might choose to do this because they want the individual to be liable for what they did, if there is a risk that the employer can avoid liability, or if there is a risk of the employer’s business going into liquidation.

Links

ACAS guide and publications

Government guidance

Equality and Human rights Commission

Disclaimer

Please note that the information on this page is intended to be a guideline and is therefore a summary of the law only and not a complete guide. Before taking any action based on this information you are strongly advised to take legal advice. Whilst every effort has been made to ensure that the information contained on this page is up to date and accurate, no guarantee can be given to this effect.