Every organisation is obligated to ensure Equal Opportunities in the workplace as mandated in the Equality Act 2010
The purpose of the Act is to ensure that you operate fairly with your existing employees and avoid discrimination during employee selection. Doing so will improve job opportunities for both employees and new job applicants.
The Equality Act 2010 ensures it is unlawful to discriminate on the basis of nine protected characteristics as follows:
- Gender Reassignment
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Religion or Belief
- Sexual Orientation
Definition of an Employee
The Equality Act 2010 defines an ‘employee’ as any one of the following:
- Employees – those with a contract of employment
- Workers and agency workers – those with a contract to do work or provide services
- Some self-employed people – where they have to personally perform the work
- Specific groups – such as police officers and partners in a business
Direct discrimination occurs where someone is treated less favourably because of:
- a protected characteristic and / or
- a protected characteristic of an associate, such as a friend, family member or colleague (direct discrimination by association) and / or
- a protected characteristic they are perceived to have, whether correctly or incorrectly (direct discrimination by perception).
Direct discrimination could involve a decision not to employ someone, dismiss them, withhold promotion or training, offer poorer terms and conditions or deny contractual benefits.
This is usually less obvious than direct discrimination and such discrimination may be unintended.
In summary, it occurs when you have a mandate that applies equally to a group of employees / job applicants, but puts those who share a certain protected characteristic at a particular disadvantage when compared to others in the group, and wherein the employer is unable to justify such mandate.
Anyone claiming indirect discrimination must show how they have been personally disadvantaged and such a mandate would disadvantage other employees or job applicants with the same protected characteristic.
By way of example, if you were to advertise for a new vacancy in your company and specified that you required 10 years of relevant work experience, this could be considered indirectly discriminatory on the basis of age, unless you could justify the 10-year requirement. That is to say that someone with relevant qualifications and less, but satisfactory levels of experience, may have to exceed 30-years of age to qualify for your vacancy.
In some situations it may be lawful for an employer to specify that a job applicant must have a particular protected characteristic as defined by the Equality Act 2010. Legally, this is termed an ‘occupational requirement’.
Such requirements must:
- be justifiably crucial to the post and
- relate to the nature of the job and
- be proportional to achieving a legitimate aim. So, if there is an alternative approach that is reasonable and less discriminatory that achieves the same aim, it is unlikely that you might claim an occupational requirement.
All three points must be met for there to be an occupational requirement.
A legitimate example is that an acting position might require a young man.