Employers are required by law not to discriminate against people on grounds of specified “protected characteristics”. Despite progress towards equality of opportunity in the workplace, some employers (and some individuals within their organisations) fall short of the required standards.
This can take the form of deliberate and malicious targeting of people with certain characteristics. More commonly, it is a subtle (and sometimes unconscious) bias against certain kinds of people and in favour of others. Unlawful discrimination can be difficult to prove and the impact on the lives and careers of those who are adversely affected can be severe. The law recognises this by partially reversing the burden of proof so that once a case to answer has been established, the onus is on the employer to show that unlawful discrimination has not taken place. In addition, unlike unfair dismissal claims (for which compensation is generally capped) the amount of compensation which can be awarded for loss shown to have been caused by unlawful dismissal is unlimited.
Nonetheless, making an allegation of unlawful discrimination is a big step, which should not be taken lightly. At Archon, we provide expert advice and guidance to executives who feel that they have been (or may have been) victims of unlawful discrimination.
The list of the “protected characteristics” (on the basis of which it is unlawful to discriminate) is currently as follows:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- race (which includes nationality, ethnic origin and colour)
- religion or belief
- sexual orientation
Discrimination claims can include claims of:
- direct discrimination on the grounds of one or more of the protected characteristics
- indirect discrimination (where basically everyone is treated in the same way, but it puts someone with one or more of the protected characteristics at a particular disadvantage and cannot be justified by the employer)
- harassment on grounds of one or more of the protected characteristics (such as by one or more other employees creating a hostile environment on such grounds)
- victimisation (such as by treating an employee less favourably for having raised a complaint about a contravention of the equality legislation (not necessarily in relation to themselves))
Our assistance to executives in this area includes:
- providing advice and guidance on whether (and, if so, when and how) to make allegations of unlawful discrimination
- strategically analysing and assessing the merits of such claims
- settling or mediating such claims at an early stage where appropriate
- drafting robust claims
- gathering documentary and witness evidence with a view to pursuing claims in the Employment Tribunal
- dealing with preparation for hearings, including dealing with disclosure of evidence from employers and providing representation at directions hearings
- preparing witnesses for hearings
- briefing Counsel to provide representation at full hearings
- if necessary dealing with any appeals to the Employment Appeal Tribunal or Higher Courts.