Sex and race discrimination

Contents
1. Introduction 2. Direct discrimination of sex or race 3. Indirect discrimination of sex or race 4. Victimisation 5. Unlawful acts of discrimination

The Sex and Discrimination Act 1975 (STA 1975) (or the Sex Discrimination (Northern Ireland) Order 1976) makes it unlawful to discriminate against women, men or married persons in recruitment, promotion, access to benefits and dismissal. The Race Relations Act 1976 (RRA 1976) (or the Race Relations (Northern Ireland) Order 1997) prohibits racial discrimination in a similar way.

There are three types of discrimination: direct, indirect and victimisation.

Direct discrimination occurs in employment when a person's sex or race is the reason for treating them in an unfavourable way.

The test is always an objective one to establish whether you would have treated your employee differently and more favourably had it not been for their sex or race.

A person's motive or intention behind the action is irrelevant and there is no defence once direct discrimination has been proved.

Direct discrimination can also take the form of stereotypical assumptions, for example because your employee is a woman with a young child it is assumed that she would be an unreliable employee.

If your employee is dismissed because she is pregnant or she is refused employment because she was or might become pregnant, it is unlawful discrimination.

Discrimination on the ground of a person's sexual orientation received much attention by the courts and tribunals in the late 1990s. The position was that discrimination on the grounds of sexual orientation did not constitute unlawful discrimination. However, the position was changed by the Employment Equality (Sexual Orientation) Regulations 2003 (or Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 and Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (as amended)) which came into effect on 1st December 2003. Discrimination on grounds of sexual orientation is no longer acceptable. Furthermore, under the Sex Discrimination (Gender Reassignment) Regulations 1999 (or the Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999), discrimination on the grounds of a sex change is now unlawful. Additionally, under the Employment Equality (Religion or Belief) Regulations 2003 (or the Fair Employment and Treatment (Northern Ireland) Order 1998), it is now illegal to discriminate in employment and vocational training on the grounds of religion or belief. See the section on sexual orientation discrimination for more information.

If your employee can establish facts from which it can be presumed that there has been discrimination on any of these grounds, then it is for you to prove there has been no breach of the principle of equal treatment.

This type of discrimination is against a particular sexual or racial group, which may prejudice your employee, but is not as obvious as direct discrimination. Three conditions must be satisfied in order to establish indirect discrimination:

• The proportion of your sexual or racial group who cannot comply with the conditional requirement is considerably smaller than the proportion of the other groups who can comply
• The condition or requirement considered to be discriminatory cannot be justified as a genuine requirement for the job
• Your employee faces detriment in their job because they cannot comply with the criteria considered to be discriminatory

If you impose some condition on a group and only the minority of the group can comply, you will have to show that the requirement or condition was reasonable.

It is important for your employee to show that they suffer a detriment because they cannot comply with the requirement or condition, as it puts them at a disadvantage.

If your employee is treated less favourably than you would treat other persons, such treatment can be discriminatory. Such treatment may arise by reason of your employee bringing proceedings against you or any person, or giving evidence or information in connection with proceedings brought by any person against you or any other person. Such behaviour will amount to victimisation and is a form of discrimination.

In order to succeed with the victimisation claim, your employee must show that a person who has not done the act would be treated differently.

Discrimination is not, however, of itself unlawful. Unlawful discrimination on the grounds of sex or race can take the following forms:

• Recruitment. It is unlawful for you, in relation to employment by you at an establishment in Great Britain, to discriminate against an employee. This applies to the arrangements that are made for the purpose of determining who should be offered that employment, or in the terms in which you offer that employment.
• Promotion and dismissal. It is unlawful for you to discriminate against an employee in the way you afford the employee access to opportunities for promotion, transfer or training, or any other benefits, facilities or services, or by dismissing the employee, or subjecting them to any other detriment.
• Advertising job vacancies. It is unlawful to publish or cause to be published an advertisement which indicates, or might reasonably be understood as indicating, an intention by you to do any act which is or might be unlawful.
• Vicarious liability. You may be liable for acts of discrimination by other employees during the course of the employment. This is so, whether or not the acts were done with your knowledge or approval. In other words, if your employee acts in a discriminatory manner against another, your employee may well be entitled to lodge a claim against you whether you knew about the discriminatory actions of the employee or not.
• Harassment. Although there are no specific definitions for sexual harassment or racial harassment, there are provisions that relate to unlawful discrimination against a woman by subjecting her, for example, to treatment of an unpleasant sexual nature.

The European code of practice on the dignity of women and men at work makes specific recommendations to employers on how to combat sexual harassment. Tribunals will look at whether you have complied with these recommendations in deciding whether you are liable.

The code provides for the issuing of a policy statement to all employees that they do have rights to be treated with dignity. Sexual harassment at work will not be permitted or condoned and all employees have the right to complain about it should it occur.

The code makes recommendations as to procedures that your employee should follow when dealing with allegations of sexual harassment. Although there is no legislation in relation to racial harassment, it is thought likely that the tribunal, when considering a claim for racial harassment, would use these guidelines.

The Protection from Harassment Act 1997 (or the Protection from Harassment (Northern Ireland) Order 1997) allows a victim of harassment to claim damages or obtain an injunction against you in the civil courts and will entitle your employee to prosecute the offender in the criminal court.

If your employee has been subjected to harassment in the work place they will be entitled to pursue you through the civil courts, and, simultaneously, pursue you through the employment tribunal.

For more detailed information please look at the official Advisory Conciliation and Arbitration Service (ACAS) site (or the Labour Relations Agency (LRA) site , in Northern Ireland).