Why Employers Should be Aware of Discrimination Legislation

Richard Gvero, Joint Senior Partner and Head of Employment, answers some basic questions about discrimination legislation and pandemic related issues.

What is the discrimination legislation which applies to employment?

As an employer, you need to be aware of the Equality Act 2010 which consolidated a number of previous anti-discrimination laws.

What protection does the Equality Act 2010 provide?

During employment, employers are prevented from treating employees less favourably because of “protected characteristics” than others without those characteristics either directly or through their practices and policies.

What are protected characteristics?

There are nine protected characteristics: race, age, disability, sex, sexual orientation, gender reassignment, marriage/civil partnership, religion/belief and pregnancy/maternity.

Is there any period of qualifying service required for an employee to bring a claim of discrimination?

Unlike most unfair dismissal claims which require two years’ service, discrimination claims can be brought from day one of employment and even before day one, as job applicants are also protected under the legislation.

Could somebody suffering from Long Covid be protected under the discrimination legislation?

The answer depends on the symptoms. Long Covid, if it has a substantial, adverse effect on an employee’s ability to carry out their day-to-day activities and has lasted, or is expected to last, 12 months or more, is likely to fall within the broad definition of disability under the Equality Act.  If it is considered that an employee might be suffering from Long Covid and be classified as having a disability, employers should obtain medical input from the employee’s GP, Occupational Health or a medical specialist. If an employee suffers from a disability, an employer must not treat them less favourably and is also under a duty to make reasonable adjustments in their working conditions if required.

Would a request from a disabled employee to work from home due to the risks of catching Covid amount to reasonable adjustment?

Remember that the definition of disability under the Equality Act is broad and would cover chronic illness such as diabetes or asthma. If it is possible for the employee to work from home, it may amount to reasonable adjustment to allow them to do so. If it is not possible to facilitate the employee’s working from home, it is important to obtain medical advice on the steps the employer can take to ensure that the employee can return to work safely, for example working in their own room or a well-ventilated space.  The employer is also under a general statutory duty to ensure safe working for staff.

What are the consequences for an employer, if they discriminate in breach of the legislation?

Broadly, there are two remedies for a victim of discrimination.  The main one is compensation for injury to feelings and financial loss (mainly loss of earnings), which is uncapped (unlike unfair dismissal claims) and can be substantial. Employment Tribunals can also make a recommendation to the employer for remedial actions.  These are not binding but it would reflect badly if not followed in relation to a future claim.

Here to Help

If you need employment advice for your business, contact Richard Gvero, Joint Senior Partner and Head of Employment.

Please note the contents of this blog are given for information only and must not be relied on. Legal advice should always be sought in relation to specific circumstances.

Published in Hertfordshire Chamber of Commerce Inspire Magazine, March-April 2022

NLA article not to be reproduced.