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Dismissal on grounds of Unlawful Discrimination
Where dismissed employees have made a complaint under the
legislation relating to discrimination on grounds of sex, race, disability,
religion or belief
or sexual orientation and are also eligible to make a complaint of unfair dismissal
they should do so, even if it is thought that the reason for dismissal was
an
unlawful act of discrimination.
SEX DISCRIMINATION
In employment it is unlawful to discriminate
against women, men or married persons in recruitment, promotion, access to
benefits and dismissal.
There are two kinds of sex discrimination: direct and
indirect.
DIRECT DISCRIMINATION
An employer discriminates directly against a person if, on the grounds of
that persons sex, the employer treats that person less favourably than another.
To establish discrimination it is not sufficient to show certain treatment
is different, it must be shown to be both:
- less favourable than the treatment
which was (or would be) accorded to a person of the opposite sex, and
- less
favourable because of the gender of the person involved.
INDIRECT DISCRIMINATION
An employer may discriminates indirectly discriminate against
a person if the employer imposes a requirement or condition which seems to
affect men and
women equally, but which in practice disadvantages a far greater proportion
of one sex than the other. However the following factors also need to be present
to constitute indirect discrimination:
- the requirement or condition is applied
equally to both sexes
- the proportion of one sex who can comply with it is
considerably smaller than the proportion of the other sex who can comply
- the individual suffers because he or she cannot comply
- the employer cannot
show the condition or requirement to be objectively justifiable
irrespective of gender
By way of example, if an employer imposes a requirement that
employees should be able to lift heavy weights (such that the proportion of
women who can comply
is considerably smaller than the proportion of men who can comply), such a
requirement would be discriminatory if applied to typists, but probably not
if applied to warehousemen.
Are there any exceptions permitted?
An employer may lawfully discriminate in the arrangements
he makes for selecting employees for a job where being a man or woman or married
is a genuine occupational
qualification for the job and discrimination against the other sex is permissible.
Examples would include occasions where either a woman or a man is needed for
reasons of authenticity or for a specific purpose such as a modelling or acting
role or for reasons of privacy and decency.
It is also permissible to engage in
Positive Action which is designed to help women compete on equal terms in
the labour market (e.g. running a single sex
training course). However, selection for jobs should always be made on merit.
What
is Sexual Harassment?
It is now well established that sexual harassment is a serious
form of direct unlawful discrimination. Sexual harassment means unwanted or
uninvited conduct
of a sexual nature, or other conduct based on sex effecting the dignity of
women and men at work. This can include unwelcome physical, verbal or non-verbal
conduct.
Harassment may be deliberate or unconscious, open or covert,
direct or indirect, an isolated incident or repeated action. It may also include,
in certain circumstances,
off duty conduct. It will not necessarily be a defence for an employer to argue
that such incidents consist of words or behaviour that might be claimed to
be “common place” or intended as a joke.
Examples of harassment
include: -
1. Insensitive jokes and/or pranks;
2. Lewd comments about appearance;
3. Unnecessary body contact;
4. Displays of sexually offensive material, for example pin-ups;
5. Requests for sexual favours;
6. Speculation about an employee’s private life and/or sexual activities;
7. Threatened or actual sexual violence;
8. Threat of dismissal, loss of promotion etc. for refusal of sexual favours.
Whilst
the above list gives examples of sexual harassment, harassment takes many
forms, from relatively mild sexual banter to actual physical violence
and the above examples are not exhaustive.
Harassment of an individual in
this manner because of their sexual orientation (i.e., because they are homosexual,
transsexual or undergoing “sex change
treatment”) will also be regarded as sexual harassment.
Sexual harassment
constitutes unlawful sex discrimination and employers may be liable for discriminatory
acts of this nature carried out by employees unless
the employer can show such steps were taken as were reasonably practicable
to prevent the employee from doing that kind of act during the course of
his or her employment. The disciplinary procedure should always therefore be
invoked
where there is a complaint of sexual harassment in order to allow the matter
to be investigated.
What are the penalties involved for Sex Discrimination?
If an Employment Tribunal finds that a complaint of sex discrimination
is well founded it can make any of the following orders:
- Declaratory Order
- an Order declaring the rights of the employee
and the employer in relation to the act complained of
- Compensation - an Order
requiring the employer to pay compensation to the employee. This may include
damages for injured feelings and compensation
for loss of
opportunity in the labour market going beyond the actual loss of wages. There
are no limits on compensation in the Industrial Tribunal for sex discrimination.
- Recommendation of remedial action - a recommendation that the employer
take within a specified period action to alleviate or reduce the effect on
the employee
of any act of discrimination complained of.
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