Unusual Types of Direct Discrimination by Employers
Everyone can be subject of discrimination without even
realising it. But, the UK provides protection to all employees from unfair
treatment by their employers under the Equality Act 2010. In such cases courts
ask themselves the same question: ‘Had this employee been of a different
race/sex/religion would the employer have treated him the same way?’ If the
answer is “No” then discrimination probably took place. Such discriminatory
treatment of employees can take many forms which are described below.
One of the forms of discrimination is discrimination by
association which arises when a person is discriminated against because of
his/her association with a person who has the protected characteristic. It was established
in Coleman v Attridge Law (2010). In
this case the claimant argued that she was harassed into resigning from her job
because she has a disabled son. It was held in this case that the fact that she
was not herself disabled was not relevant as she was discriminated on the
ground of disability of her son.
Similarly, in Showboat
Entertainment Centre v Owens (1984) a white applicant employed as a manager
of amusement centre was dismissed because of his refusal to carry out a
racially discriminatory instruction to exclude young black people from the amusement
centre. It was held that racial discrimination can occur even if racial
characteristics were of a different person than the one treated less
favourably.
Another example of discrimination when a person did not have
one of the protected characteristics is English
v Thomas Sanderson Ltd (2008). In this case an employee was harassed on the
ground of sexual orientation by 4 colleagues. Although, he was a heterosexual
and married man. So, the question arose whether it is harassment if he was not
gay, he was not perceived or assumed to be gay by his colleagues and he
accepted that they did not believe him to be gay. Despite all of those factors
it was held that harassment took place. Therefore, one would argue that the law
is too wide as it covers such situations.
However, perceptive discrimination is another example of
discrimination when a person treats another less favourably because it is
believed that that other has a protected characteristic. Although, it does not
apply to marriage and civil partnership. It can take place when a person with a
foreign sounding name applies for a job and is not appointed because the employer
thinks that he is from an African country. It is a necessary type of
discrimination because people discriminated against for not legitimate reasons
can get compensation, although they do not have that characteristic.
Another specific type of discrimination is deterred
discrimination. It takes place when an employer gives an indication that
persons who have a particular protected characteristic would not be considered
for the post. It must be shown that the person with the characteristic
genuinely intended to apply for the post and that he/she was suitably qualified
for it. Therefore, those who had the protected characteristic cannot get any
damages if they did not have the required level of education or the necessary
amount of experience to get the job.
If that deterred discrimination was contained in an
advertisement case against the employer can be brought by the Equality and
Human Rights Commission. Those adverts can include jobs offered to ‘young
graduates’ as they discriminate because of age. The discrimination takes place
because older graduates eligible to apply are put off. But, whether an advert
is discriminatory or not depends on whether a reasonable person would see it as
discriminatory.
So, intentions of people who discriminated are sometimes
more important for courts than the fact that the person discriminated against
did not have the protected characteristic. Therefore, associative and
perceptive discrimination perform a very useful function to ensure effective
protection of employees. Besides, people who do not even realise that they were
discriminated against can receive protection as discriminatory adverts are
dealt with by the Equality and Human Rights Commission which enables courts to
ensures justice.