Does the Equality Act 2010 allow me to positively discriminate when recruiting?
The short answer is no. However the Equality Act 2010 (“the Act”) does allow employers to take positive action in recruitment and promotion. This is a very different thing.
Under the Act, positive action is permissible if:
- the employer “reasonably thinks” that people with a protected characteristic* suffer a disadvantage or are under-represented in the workforce because of that protected characteristic (“the protected group”); and
- the candidate from the protected group is “as qualified as” the candidate or other candidates in terms of the particular vacancy in question.
If both criteria are met the employer may take positive action and make a selection decision on recruitment or promotion to favour the candidate from the protected group,
For example, if an organisation was looking to recruit primary school teachers and there were very few male primary school teachers within the organisation, if the employer had two candidates of equal merit, one male and one female, the employer could take positive action and select the male as the suitable candidate.
An employer cannot simply recruit someone because they are from an under-represented group, this would be positive discrimination.
There is no obligation on an employer to take positive action but if it does, then it is important that it can support the decision. The Government Equalities office has provided a guide to Positive Action in Recruitment and Promotion.
- (The protected characteristics in employment are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation).
We have recently had an employee leave and they have now written to us alleging that they have been harassed by one of our employees and that they are proposing to bring an Employment Tribunal claim against both the company and the employee. Can an employee bring a claim of discrimination against an individual and if so, who pays compensation if the claim is successful?
Yes. An employee, the Claimant, who believes that they have been subjected to discriminatory treatment at work can bring a claim against both the Company and the employee who they allege has committed the act in question. The Claimant can choose whether to bring a claim against the employee, the Company or both.
If the Tribunal finds that discrimination has taken place, they can find both the employee and the Company liable unless the Company is able to satisfy the Tribunal that it has a defence to the claim; the defence being that it has taken such steps as are reasonably practicable to prevent the employee from doing the act in question.
In the situation where both the employee and the Company are liable, then it has been the practice that the Tribunal would apportion compensation. However a recent Employment Appeal Tribunal case has held that this was the wrong approach and that compensation should be awarded on a joint and several liability basis. This means that it is for the Claimant to choose which party he seeks to recover compensation from. The result of this is that an employee could elect to recover all the compensation from just one party, either the Company or the employee. Given that discrimination compensation is unlimited, this can be a useful point of reminder when reissuing any bullying and harassment procedures.
We provide all our employees with private health insurance, irrespective of their age, but understand that we may be able to remove this benefit for employees aged 65 or over and that this won’t be discriminatory. Is this correct?
When the Default Retirement Age was removed, the Regulations implementing this change gave employers an exemption from an age discrimination claim if they withdrew or ceased to offer private health insurance to employees when they reached the age of 65.
Due to the way the Regulations are drafted, it means that more generous employers i.e. those who allow employees to continue to receive such a benefit beyond the age of 65, cannot later rely on the exemption as the withdrawal/cessation can only be triggered by the employee attaining the age of 65 and not some later age. * On this basis, employers wishing to remove the benefit for employees aged over 65 would need to be able to objectively justify this to avoid an age discrimination claim.
In either scenario, whether an exemption applies or the employer is able to objectively justify the removal of the private health benefit, there may still be contractual issues that need to be addressed. Assuming that the benefit is a contractual one then there are two options. It may be that the terms of the contract allow you to remove the benefit but in so doing you should consult with the employee about the proposal prior to removing the benefit. If there is no provision in the contract then you would need to go through the appropriate channels for achieving such a variation. Further details on changing terms can be found in our section on Managing Contracts.
Similar exemptions apply to Life Assurance Benefits as well.
*NB. This is subject to any increases in State Pension Age in which case the exemption age will apply in line with the State Pension Age.
As a company we have been expanding the sectors in which we operate and have now won a contract to supply items which will be used in military equipment. We are not responsible for making the military equipment. One of our employees has objected to working on this particular project, claiming to be a pacifist. Can we insist that he carries out the work?
As a pacifist the employee may be protected under the Equality Act 2010. Pacifism is likely to be considered a “similar philosophical belief” to religion and therefore the employee is entitled not to be discriminated against because of his belief.
If the reason why the employee is objecting to working on this particular project is because of his pacifist beliefs, if you insist on him working on this particular project, you risk indirectly discriminating against him. This is unless you are able to objectively justify the requirement that he carry out the work.
You should address the employee’s objection by looking to see how you can accommodate the employee not working on this particular activity. The first step is to see what you can do in the area that he is working, for example can you allocate him other work that does not have any links/use in military equipment. If you are unable to do this within the area that he is working then can you find him work elsewhere within your organisation whilst the particular project is underway? In the event that you have done all you can find him work on non-military linked projects but with no success then you may have to look at other steps such as allowing him to take holiday/unpaid leave if the project is of a short term nature or, if this is going to be a long term on-going project, you may have to consider termination of his employment. We would advise that you speak with your HR Adviser before embarking on such a step.
Don’t forget that if an employee is dismissed because of his political opinions or affiliations there is no qualifying period for the employee to bring a claim of unfair dismissal. Dismissal for such a reason is not automatically unfair but you would need to demonstrate that there was a fair reason for the dismissal and a fair process carried out, including a genuine search for alternatives.