Core guidance: Dismissal, redundancy, retirement and after a worker has left
Are you an employer?
This guide calls you an employer if you are the person making decisions about what happens in a work situation. Most situations are covered, even if you don’t give your worker a written contract of employment or if they are a contract worker rather than an employee. Other types of worker such as trainees, apprentices and business partners are also covered. If you are not sure, check under 'work situation' in the Glossary. Sometimes, equality law only applies to particular types of worker, such as employees, and we make it clear if this is the case.
What else is in this guide
- Information about making reasonable adjustments to remove barriers for disabled people who work for you or apply for a job with you.
- Information about when you are responsible for what other people do, such as your employees.
- A list of words and key ideas you need to understand this guide – all words highlighted in bold are in this list. They are highlighted the first time they are used in each section.
- Advice on what to do if someone says they’ve been discriminated against.
- Information on where to find more advice and support.
Throughout the text, we give you some ideas on what you can do if you want to follow good equality practice and do more than equality law says you must do. This can help you focus on what your workers contribute to your organisation, rather than on their protected characteristics.
Making sure you know what equality law says you must do as an employer
First, use this list to make sure you know what equality law says you must do.
Does the job or position you are dealing with count as a work situation for equality law? Most situations are covered, even if you don’t give your worker a written contract of employment or if they are a contract worker rather than an employee. People in other positions like trainees, apprentices and business partners are also covered. If you are not sure, check the list under ‘work situation’.
Make sure you know what is meant by:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation.
These are known as protected characteristics.
- You must not treat a person worse than someone else just because of a one or more of their protected characteristics (this is called direct discrimination).
For example: An employer selects a woman for redundancy because she is pregnant.
For example: An employer uses the excuse of persistent lateness to dismiss a gay man because he is gay; a straight man who has the same pattern of lateness is not dismissed.
- In the case of women who are pregnant or on maternity leave, the test is not whether the woman is treated worse than someone else, but whether she is treated unfavourably from the time she tells you she is pregnant to the end of her maternity leave (equality law calls this the protected period) because of her pregnancy or a related illness or because of maternity leave.
- You must not do something to someone in a way that has a worse impact on them and other people who share a particular protected characteristic than it has on people who do not have the same characteristic. Unless you can show that what you have done, or intend to do, is objectively justified, this will be indirect discrimination. ‘Doing something’ can include making a decision, or applying a rule or way of doing things.
For example: An employer has a policy of providing references for former employees which simply state length of service and the number of days they were absent from work regardless of the reason. If the employer cannot objectively justify this approach, it is likely to be indirect discrimination against former employees who were absent because of protected characteristics, as it has a worse impact on them and others who share the same characteristics.
- You must not treat a disabled person unfavourably because of something connected to their disability where you cannot show that what you are doing is objectively justified. This only applies if you know or could reasonably have been expected to know that the person is a disabled person. This is called discrimination arising from disability.
For example: A small beauty products company employs a receptionist who is in an accident, as a result of which when she returns to work she has a severe facial disfigurement. Clients of the company make remarks about this and suggest she is unsuitable for this outward-facing role. The company considers dismissing her because of the amount of time other staff spend explaining her situation and how this makes them feel. However, when considering the decision, they realise that the dismissal would be for a reason connected to her disability (the attitude of clients and the impact on the other staff). Instead, the company keeps her in post and trains other staff to challenge the negative attitudes displayed by visitors. Whilst the company may have considered whether they could objectively justify dismissing her, instead it decides to retain a valued employee and avoid the prospect of a claim for discrimination arising from disability.
- You must not treat a person worse than someone else because they are associated with a person who has a protected characteristic.
For example: An employer selects a person for redundancy not because they meet the selection criteria, but simply because they have a disabled child and the employer believes they may need time off to care for their child.
- You must not treat a person worse than someone else because you incorrectly think they have a protected characteristic (perception).
For example: An employer makes a member of staff redundant because they incorrectly think they have a progressive condition (in other words, that they are a disabled person). This is almost certainly direct discrimination because of disability based on perception.
- You must not treat a person badly or victimise them because they have complained about discrimination or helped someone else complain or done anything to uphold their own or someone else’s equality law rights.
For example: An employee complains of discrimination and a colleague goes to their Employment Tribunal to give them support, although they do not give evidence. The colleague is subsequently selected for redundancy because the employer resents their support for the original employee. This is almost certainly victimisation. This would also apply if the colleague had given evidence in the case.
This also includes dismissing someone or selecting them for redundancy or discriminating against them after they’ve stopped working for you because they have discussed whether they are paid differently because of a protected characteristic.
For example: A woman thinks she is underpaid compared with a male colleague because of her sex. She asks him what he is paid, and he tells her, even though his contract forbids him from disclosing his pay to other staff. The employer takes disciplinary action against the man as a result and dismisses him. This would be treated as victimisation.
If this applies to you, you can read more about this in our guide: What equality law means for you as an employer: pay and benefits.
- You must not harass a person.
For example: A shopkeeper propositions one of his shop assistants, she rejects his advances and is then selected for redundancy which she believes would not have happened if she had accepted her boss's advances. This is likely to be harassment.
- In addition, to make sure that disabled people have the same access, as far as is reasonable, to everything that is involved in getting and doing a job (including disciplinary procedures) as a non-disabled person, as far as is reasonable, you must make reasonable adjustments.
For example: An employer is considering dismissing an employee who happens to be a disabled person who happens to havewith has a visual impairment. and their employer is considering dismissing them . It is likely to be a reasonable adjustment for the employer to make sure that the information the person needs about the disciplinary procedure is available to them by checking what format they need the documents to be in.
For example: A disabled person has a learning disability and their employer agrees, as a reasonable adjustment, that they can be accompanied to a disciplinary hearing by a support worker as well as by their union representative.
- You must make reasonable adjustments to what you do as well as the way that you do it.
For example: A disabled person has a spinal condition that causes them severe pain. This sometimes makes them short-tempered. One day, the person shouts at their employer. This is completely out of character, and is because of the pain they are experiencing. Usually, this would lead to an employee being considered for disciplinary action. However, their employer knows about the person’s disability and, as a reasonable adjustment, operates a higher threshold before considering their behaviour to be unacceptable. (They have also encouraged the disabled person to be open with colleagues about their condition so that other staff understand the reason for the difference in treatment). This does not mean that the disabled person can behave as they like; the employer only has to make reasonable adjustments, so if their behaviour is unacceptably bad, the employer still has the option of disciplinary action. If this was the case, although the disciplinary action might amount to treating the disabled person unfavourably for something arising from their disability (their short temper), the employer would probably be able to objectively justify their approach.
Last Updated: 13 Jan 2015