“Discrimination” is a term which implies a difference – in treatment or impact. As mentioned in our previous article, the Isle of Man has laws to protect against unlawful discrimination in both employment and as regards access to goods and services.
Essentially, it is against the law to discriminate against someone because of a “protected characteristic”. These comprise sex, gender reassignment, disability, age, sexual orientation, pregnancy and maternity, marriage and civil partnership, race, and religion or belief.
An employee has a right not to be treated less favourably, or be subjected to an unfair disadvantage at work, because of a protected characteristic that they have. The legal protection is also broad enough to cover cases where the less favourable treatment is because of a person’s association with someone else having a protected characteristic (such as a disability) or where the person is wrongly thought to have that characteristic (e.g. a particular religion or belief).
Protection against unlawful discrimination applies throughout the employment lifecycle, i.e. from recruitment through to terms and conditions, pay and benefits, opportunities for promotion, transfer and training, dismissal and redundancy.
There are different types of discrimination, all of which can occur in the workplace:
- Direct discrimination occurs when an individual is treated less favourably because of a protected characteristic. An example of this would be refusing to employ an individual because of their religious belief. Apart from direct age discrimination in some circumstances, direct discrimination cannot be justified. Denial of promotion by an employer would also amount to unlawful direct discrimination if the reason is because the employee is, e.g., pregnant, black, or has a disability.
- Indirect discrimination occurs when an employer applies a practice, policy or rule to all employees which has an adverse impact on people who share a protected characteristic in circumstances where the practice, policy or rule cannot be objectively justified. For example, an employer brings in a policy which requires all employees to work full-time. This policy could disadvantage women as a group, since women (still) typically bear a greater proportion of domestic and childcare responsibilities than men. Unless the employer can objectively justify the need for a full-time worker to do a particular job, the requirement could be indirectly discriminatory.
- Harassment occurs where an employee is subject to unwanted conduct related to a relevant protected characteristic which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for them, or of violating their dignity. This can include conduct of a sexual nature which has the effect described and less favourable treatment because an individual has submitted to, or rejected, sexual harassment. For example, a manager makes sexual advances to an employee but the employee rejects them. The employee is later turned down for a promotion which they believe they would have been awarded had they accepted the manager’s advances. The employee may be the victim of harassment.
- Victimisation occurs when someone is treated less favourably as a result of being involved with a discrimination or harassment complaint which concerns a protected characteristic. For example, an employer threatens to dismiss a member of staff because they think the employee intends to support a colleague’s sexual harassment claim.
It is worth noting that, particularly in the context of harassment and victimisation, employers can be vicariously liable for the unlawful conduct of their employees. Accordingly, it is important to have policies to deal with such matters, to provide appropriate training, and to foster a positive diversity culture.
Who is protected?
In the employment context, it is unlawful to discriminate against:
- Job applicants – in relation to recruitment arrangements and decisions, i.e. deciding who to offer employment to, the terms on which the employment is offered, or by not offering employment.
- Employees – as to the terms of employment, opportunities for promotion, transfer, training, benefits, dismissal or by subjecting an employee to any other detriment, including harassment or victimisation.
- Former employees – where the discrimination arises out of or is closely connected to the employment relationship.
The term “employment” is widely defined under the Equality Act 2017 and covers working under a contract of employment, a contract of apprenticeship or a contract personally to do work. This means that a self-employed worker may be protected where they can show that the contract obliges them to perform the work personally (i.e. where no delegation or sub-contracting is allowed).
Qualifications to the rule against discrimination
Whilst it is generally not possible to justify direct discrimination (save for direct age discrimination) there are some situations in which an employer can lawfully differentiate or make accommodations related to protected characteristics, e.g.:
- Positive action – where an employer puts in place measures with a view to removing barriers for under-represented or disadvantaged groups (e.g. women or people with disabilities). This should not be confused with positive discrimination, which is not permitted. For instance, the use of quotas and automatically making recruitment decisions solely on the basis that someone has a protected characteristic could well be discriminatory. Examples of positive action include encouraging applications from job seekers in under-represented groups and providing targeted training where there is a disproportionately low number of job holders (e.g. women in senior management positions).
- Objective justification – where an employer can demonstrate a legitimate need for a policy, practice or rule which may be indirectly discriminatory. For example, the fire service requires all job applicants to take a series of physical tests. This could be indirect discrimination because of age, since older candidates may be less likely to pass the tests than their younger counterparts. However, the fire service can probably justify such a policy provided the position applied for requires physical strength/abilities. In all the circumstances, there must be a legitimate reason for the discrimination which the application of the policy, practice or rule etc is a proportionate means of achieving.
- Occupational requirement – it is a defence to a claim of direct discrimination that an employer needs to recruit someone with a specific protected characteristic to do a particular job. This might be for reasons of authenticity (e.g. hiring an actor in a historic play) or where it is otherwise reasonable to impose such a requirement on account of a preference or stipulation (e.g. where a carer is engaged to provide intimate personal care, or when recruiting for changing room staff). The employer will still have to show that the requirement is genuine and that there are no less discriminatory ways of achieving the aim in question.
Discrimination in the workplace can be serious and costly, even if unintentional. There are various steps an employer can take to help reduce the risk of discrimination occurring, however, including:
- having workplace policies and procedures which encourage inclusion and do not (inadvertently or otherwise) disadvantage employees with a protected characteristic;
- providing equality and diversity training, particularly for employees who are responsible for hiring, firing and making other management decisions to ensure they understand the different types of discrimination, how it arises, and the risk areas; and
- promoting and reinforcing (via disciplinary action, if necessary) the principles of inclusion and dignity at work to prevent employees experiencing bullying and harassment and to ensure all staff are aware of what is acceptable conduct.
The next article in our series will consider the protected characteristic of religion or belief.
If you have any queries, please do not hesitate to get in touch with our Employment Team.
How can we help?
Cains is able to provide clear, considered and tailored legal advice and administrative support necessary for ensuring that all of your needs are managed and executed in an efficient and timely manner.
The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.