What The Law Says
Employers’ responsibilities regarding discrimination are set out in a number of Acts of Parliament and regulations.
The Acts and regulations
Acts of Parliament
The following list of legislation relates to the content of this section of the website.
- Equal Pay Act 1970
- Sex Discrimination Act 1975
- Race Relations Act 1976
- Disability Discrimination Act 1995
- Human Rights Act 1998
- Race Relations (Amendment) Act 2000
- Civil Partnership Act 2004
- Disability Discrimination Act 2005
- Equality Act 2006
- Sex Discrimination (Gender Reassignment) Regulations 1999
- Race Relations Act 1976 (Amendment) Regulations 2003
- Equal Pay Act (EPA) 1970 (Amendment) Regulations 2003
- Employment Equality (Sexual Orientation) Regulations 2003
- Employment Equality (Religion or Belief) Regulations 2003
- Employment Equality (Sex Discrimination) Regulations 2005
- Employment Equality (Age) Regulations 2006
Justifying discrimination: is it ever lawful?
Employers may sometimes believe that discrimination can be justified. Typical examples include:
- advertising a position as being only open to women as it involves providing intimate care to elderly female residents of a care home
- dismissing somebody because they have reached normal retirement age
- believing that a woman who has been absent on maternity leave is entitled to a performance-related bonus for that period.
An employer’s belief that discrimination is justified is no guarantee that it actually is lawful.
There are certain circumstances where some types of discrimination can be justified. But the exceptions are very narrow and they will be strictly interpreted by any court or tribunal. There is also variation in the exceptions depending on what type of discrimination is alleged.
Under certain limited circumstances – especially those known as genuine occupational requirements (GORs) and genuine occupational qualifications (GOQs) – discrimination may be lawful.
If you believe that you have a situation which might arise within an exception, we would recommend that you take professional advice.
Liability and legal responsibility
As employers, service providers are legally responsible for the discriminatory acts of the people they employ if the acts are committed in the course of employment, even where those acts are done without either the authority or knowledge of the employer.
Any discrimination or harassment by an individual employee in the course of his or her employment is treated as also being done by the employer, and therefore both employee and employer are liable.
If the employer can show it took all reasonably practicable steps to prevent the discrimination or harassment from occurring, the employee alone will be liable. This is called a ‘reasonable steps’ defence.
This means that liability for discrimination or harassment depends on several questions:
- Who was the employer?
- Who was the employee?
- Was the discrimination or harassment committed in the course of employment?
- Had the employer taken reasonable steps to prevent it?
The answers to these questions are not always immediately obvious. For example, the definition of ‘employer’ is wider in discrimination cases than it is in cases of unfair dismissal, and ’in the course of employment’ might include circumstances such as Christmas parties, where someone is off duty but still in a work-related situation.
Types of discrimination in employment
- direct discrimination
- indirect discrimination
- not making reasonable adjustments
- instructions and pressure to discriminate
An example of direct discrimination in employment would be requiring that job applicants have a particular national origin.
An example of indirect discrimination in employment would be stating in a job advertisement that candidates must be over six feet tall. This could indirectly discriminate against women, who are less likely to fulfil this requirement.
Similarly, a rule against wearing headgear at work could indirectly discriminate against Sikh men who wear turbans in accordance with their religious practice.
An example of victimisation in employment would be if a person who has made a discrimination complaint against an employer is then discouraged from applying for training or promotion because of the complaint.
Examples of workplace harassment might include:
- making unfounded threats or comments about someone’s job security
- unwelcome sexual advances – touching, standing too close, display of offensive pictures
- deliberately blocking someone’s opportunities for promotion or training.
Not making reasonable adjustments
The Disability Discrimination Act requires employers to make adjustments to working practices and environments where necessary. This is so that people with disabilities are not disadvantaged. Common examples of workplace adjustments include:
- laying out furniture so that a wheelchair user can move freely around your office
- providing a toilet designed for disabled people
- providing speech recognition software to help someone with motor difficulties use your IT systems.
Instructions and pressure to discriminate
Employers must not tell people to discriminate or put pressure on them to do so. For example, if a GP instructed his receptionist not to register anyone who might need help from an interpreter, this would constitute an instruction to discriminate.
Segregation is physically separating someone from others because of their gender, ethnicity, age, sexual orientation, disability, belief or religion.
For example, women might be given restricted access to careers advice, work-experience placements and training opportunities for certain jobs, which are seen as being traditionally male.
Getting help and advice with legal issues
See Choosing your advisers very carefully for advice on where to get legal advice as an employer.
Last Updated: 04 Jun 2009