Core guidance: Dismissal, redundancy, retirement and after you have left a job
Are you a worker?
This guide calls you a worker if you are working for someone else (who this guide calls your employer) in a work situation. Most situations are covered, even if you don't have a written contract of employment or if you 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 list of words and key ideas. Sometimes, equality law only applies to particular types of worker, such as employees, and we make it clear if this is the case.
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.
- Your employer must not treat you worse than someone else just because of a protected characteristic (this is called direct discrimination).
- An employer selects a woman for redundancy because she is pregnant.
- 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.
- If you are a woman who is pregnant or on maternity leave, the test is not whether you are treated worse than someone else, but whether you are treated unfavourably from the time you tell your employer you are pregnant to the end of your maternity leave (which equality law calls the protected period) because of your pregnancy or a related illness or because of maternity leave.
- Your employer must not do something to you in a way that has a worse impact on you and other people who share a particular protected characteristic than on people who do not have that protected characteristic. Unless your employer can show that what they 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.
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.
- If you are a disabled person, your employer must not treat you unfavourably because of something connected to your disability where they cannot show that what they are doing is objectively justified. This only applies if an employer knows or could reasonably have been expected to know that you are a disabled person. This is called discrimination arising from disability.
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.
- Your employer must not treat you worse than someone else because you are associated with a person who has a protected characteristic
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.
- Your employer must not treat you worse than someone else because they incorrectly think you have a protected characteristic (perception).
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.
- Your employer must not treat you badly or victimise you because you have complained about discrimination or helped someone else complain or done anything to uphold your own or someone else’s equality law rights.
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 if your employer dismisses you or selects you for redundancy or discriminates against you after you’ve stopped working for them because you have discussed whether you are paid differently because of a protected characteristic.
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 the Equality and Human Rights Commission guide: Your rights to equality at work: pay and benefits.
- Your employer must not harass you.
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, if you are a disabled person, to make sure that you have the same access, as far as is reasonable, to everything that is involved in getting and doing a job as a non-disabled person, your employer must make reasonable adjustments.
- An employer is considering dismissing an employee who happens to be a disabled person with a visual impairment. 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.
- 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.
Your employer must make reasonable adjustments to what they do as well as the way that they do it.
A disabled person has a spinal condition that causes them severe pain. 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: 23 Jan 2015