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Discrimination, Harassment and Victimisation - The Basics

Discrimination, Harassment and Victimisation - The Basics

Let's be honest – discrimination, bullying, victimisation and harassment can be portrayed as meaning the same thing – especially in a workplace environment. So what's the difference between each definition? We run through the basics of the legal meanings of discrimination, harassment and victimisation.

In the Equality Act 2010, victimisation and harassment have quite specific meanings - while 'bullying' doesn't feature as a legal term at all. Discrimination and harassment can be identified in the following protected characteristics:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

​DISCRIMINATION

Discrimination can be direct or indirect.

Direct discrimination occurs where 'because of a protected characteristic, A treats B less favourably than A treats or would treat others'. For example, because of an employee's disability (a protected characteristic), an employer treats that employee less favourably then they would treat a non-disabled employee.

Employers should note that, other than age discrimination, direct discrimination cannot be objectively justified.

Indirect discrimination is concerned with acts, decisions or policies which have the effect of disadvantaging a group of people with a particular protected characteristic. The definition of indirect discrimination is as follows

  • A applies to B a provision, criterion or practice(PCP).
  • B has a protected characteristic.
  • A also applies (or would apply) that PCP to persons who do not share B's protected characteristic.
  • The PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others.
  • The PCP puts or would put B at that disadvantage.
  • A cannot show the PCP to be a proportionate means of achieving a legitimate aim.

Employers should note that, under the protected characteristic of disability, an employer may also be liable if they discriminate by treating a job applicant or employee unfavourably because of something arising in consequence of disability without objective justification or fail to comply with their duty to make reasonable adjustments where a disabled job applicant or employee is placed at a substantial disadvantage.

Employees and workers, together with individuals who are self-employed have the right not to be discriminated against, harassed or victimised.

Events before (i.e. the recruitment process), during and after employment (i.e. the provision or non-provision of a reference) may also give rise to a claim of discrimination.

There is no qualifying period of employment required to pursue a discrimination claim, unlike unfair dismissal.

VICTIMISATION

Victimisation involves treating a person less favourably because they have complained (or intend to complain) about discrimination, or because they have given evidence in relation to another person's complaint.

An employee should not be disciplined or dismissed for complaining about discrimination or harassment at work.

It is recommended that legal advice should be sought when an employer is seeking to discipline or dismiss an employee for a reason not connected (or connected with) with them making a complaint about discrimination or harassment at work.

HARASSMENT

Harassment is defined as "any unwanted physical, verbal or nonverbal conduct that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them."

Harassment is discriminatory if it is related to any of the protected characteristics listed above, save from marriage/civil partnership and pregnancy/maternity.

As an employer, it is advisable that you have an equal opportunities policy which should not form part of the contract of employment, as this gives the employer freedom to amend the policy at any given time. The policy should be relevant to your organisation and its activities.

It is worth reviewing any existing equal opportunities policy to ensure that it is fit for purpose or consider implementing a policy which will assist HR, line managers and those involved in the recruitment process to minimise the risks of a discrimination, harassment or victimisation claim.

MORE INFORMATION 

If you believe that an employee has breached the terms of a settlement agreement, or require further legal advice on how to ensure that breaches do not occur in the future, Pinney Talfourd solicitors in Essex and London are here to advise and assist. We have an experienced and dedicated team of employment lawyers based in five offices across the county.

We offer late night and Saturday appointments, and our free initial telephone consultation allows you to explain the situation with an expert lawyer and discuss the best steps to minimise stress and delays. You can book your free initial employment consultation using our online booking form or by calling your local office.



 
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