Discrimination at work has been a business issue for decades. And yet its scope is still evolving. Put simply, workplace discrimination involves an employer treating a particular member of staff differently for unjustifiable reasons. The most obvious types of discrimination that spring to mind are racial and sexual. But there are far more - and the law is still developing in this field.
The Sex Discrimination Act of 1975 prohibits the treatment of a woman or a man any differently or less favourably than the opposite sex. For instance, where a male and female employee with the same qualifications occupy the same or similar positions, paying one less than the other for no justifiable reason is discriminatory. But the law as regards paying men and women different rates if they work in different sections or departments within a company is still being shaped by recent tribunals.
Where an employer treats employees from different racial backgrounds differently, the less favourably treated race can bring a racial discrimination action against the employer. But a recent employment tribunal considered whether a claimant could claim damages for loss of earnings suffered after the alleged discrimination. The claimant argued that he would struggle to find another job because potential employers would know he had brought the discrimination claim. He lost - but the hearing showed that the consequences of discrimination claims for businesses could be becoming far wider.
Disability, sexual orientation, faith, age and employment status are all areas where discrimination is now an issue. Discrimination cases are particularly expensive for employers who are found guilty. But it has been established that certain actions that could be perceived as discriminatory may be justifiable. It is clear now that it is not discrimination if an employer offers fringe benefits such as staff discounts to permanent or full-time staff but not to temporary or part-time workers.
In deciding discrimination cases, employment tribunals and courts must establish whether the claimant is an actual employee of the respondent or self-employed. An employee is someone working under a contract of employment with mutually-agreed terms, while a self-employed individual is neither working under a contract of full-time employment nor regarded as part of the employer's workforce. This is crucial as the law provides for employees to claim unfair dismissal, redundancy, maternity or paternity leave and statutory sick pay. But part-time or temporary workers do not necessarily have the same statutory rights.
This was shown in the employment tribunal case last year, X V Mid Sussex Citizens Advice Bureau. The Disability Discrimination Act (2005) prohibits treating anyone with a disability less favourably than his or her co-workers. Yet the employment tribunal ruled that a person working as an unpaid volunteer for CAB did not have a legally binding contract and so discrimination legislation could not apply to her.
Discrimination may prove difficult to establish in such cases. However, employers are best advised to consider and re-consider their decisions, particularly regarding how they affect each and every employee.
The European Court has recently heard a number of age-related cases. It has been ruling on whether younger workers are being discriminated against if their work service before a certain age is not counted when calculating redundancy payments or incremental pay rises. Another new issue is whether a maximum age limit on being admitted to practice a profession is age discrimination. In the tribunal last year of Baker V National Air Traffic Control Service, it was ruled that the ban on anyone aged 36 or over being accepted for training to become an air traffic controller was age discrimination. Such cases show just how workplace discrimination issues are changing and developing.
For more information please visit www.rahmanravelli.co.uk
