Definitions of discrimination
What is discrimination?
The equality laws prohibit discrimination on the statutory equality grounds in relation to the whole range of employment-related activities, from recruitment through to termination of employment, and even beyond (e.g. providing job references to former employees).
The laws use terms such as direct discrimination; indirect discrimination; disability-related discrimination; failure to comply with a duty to make reasonable adjustments; harassment and victimisation to describe the different types of discriminatory conduct which are prohibited. Further information about these terms is given below.
This usually occurs where an employer treats a job applicant or employee less favourably than he treats (or, would treat) another person, in the same or similar circumstances, on one or more of the statutory equality grounds.
For example, it is direct discrimination to refuse to employ a job applicant because he is a man, or she is a woman, or pregnant; or, because he/she is a Roman Catholic or a Protestant; or, because he/she is an Irish Traveller; or, because he/she is gay or lesbian; or, because he/she is disabled; or, because he/she is of a certain age (e.g. over 60, or under 20).
An employment decision that is directly discriminatory will normally be unlawful unless: (a) in an age discrimination case, the decision can be objectively justified, or (b) in any other case, the employer can rely on a statutory exception, such as a genuine occupational requirement exception where the job needs to be done by a person who has a particular characteristic (e.g. the job holder needs to be a woman in order to preserve the decency and privacy of women service-users who may be undressed).
This usually occurs where an employer applies to all job applicants or employees a provision, criterion or practice, but which has the effect of placing people who share a certain equality characteristic (e.g. the same sex, or religious belief, or race) at a particular disadvantage compared to other people.
Example: Indirect discrimination might arise in a recruitment situation in the following way: the employer sets and applies a certain job criterion to all job applicants; however, it has the effect of disproportionately excluding or disadvantaging people who are members of a particular equality group. For example: (a) if a job-holder needs to have a degree and 5 years post-qualification experience then the criteria effectively excludes people aged under 26 or 27 years and, thus, the combined effect of the two criteria could be indirectly age discriminatory against people under the age of 26/27 years; (b) requirements to have academic qualifications that can only be gained through the local education systems (i.e. UK or Republic of Ireland) may effectively exclude many migrant workers who are otherwise eligible and qualified to do the work in question and, thus, could give rise to indirect race discrimination.
An employment decision that is indirectly discriminatory will normally be unlawful unless the decision (e.g. the job criterion in question) can be objectively justified.
This usually occurs where an employer, without lawful justification, and for a reason which relates to a disabled person´s disability, treats that person less favourably than the employer treats (or, would treat) other people to whom that reason does not (or, would not) apply.
Example: disability-related discrimination might occur in the following way; an employee is disabled and his disability causes him to have a period of bad health. As result, he is unable to work and has to take a period of sick leave. After being off work for 6 months, his employer dismisses him on the grounds of poor attendance. The reason for the dismissal (i.e. poor attendance) is related to the employee´s disability, because if he had not been disabled he would not have been absent. If the employer would not have dismissed any other employee who was also absent for a similar period for other (non-disability related) reasons, then the dismissal of the disabled employee will amount to unlawful disability-related discrimination, unless the employer can lawfully justify his decision.
But, an employer who acts in the way shown in the example should not take any comfort from the possibility of being able to justify an act of disability-related discrimination. The reason is that an employer who acted that way would also at the same time have committed an act of unlawful direct discrimination, and in that case there is no justification defence. So, in any case, the employer´s action is unlawful.
Also, in the same example, an employer who dismisses an employee in such circumstances may also have discriminated against the disabled employee in another important way; i.e. by having failed to comply with a duty to make reasonable adjustments.
This is another form of disability discrimination that occurs where an employer is under a duty to make reasonable adjustments for a particular disabled job applicant or employee and fails to comply with it. A failure to comply with the duty cannot be justified and is always unlawful.
An employer will be under a duty to make reasonable adjustments for a particular disabled job applicant or employee if the following conditions apply-
- the disabled person is at a substantial disadvantage compared to persons who are not disabled as a result of,
- any provision, criterion or practice applied by the employer, or any physical feature of premises occupied by the employer, and
- the employer knows, or could reasonably be expected to know, that the disabled person is disabled and is suffering the said disadvantage, or is likely to.
Where the employer is under the duty, he/she is required to take such steps as are reasonable to take, in all the circumstances of the case, in order to prevent the disabled person from suffering the said disadvantage.
In a recruitment exercise, this could mean that the employer may, depending on what is reasonable in the circumstances, have to change or waive particular job selection criteria, or provide assistance to a disabled job applicant to help him/her to participate in a selection test or job interview.
Harassment is a form of discrimination that may occur across all or any of the statutory equality grounds. It usually occurs where a job applicant or employee is subjected to unwanted conduct that is related to a statutory equality ground with the purpose, or which has the effect, of violating their dignity or of creating for them an intimidating, hostile, degrading, humiliating or offensive environment. Harassment cannot be justified and is always unlawful.
This is a form of discrimination that usually occurs where an employer treats an employee or job applicant less favourably than he treats (or she, would treat) another person, in the same or similar circumstances, because the person has previously exercised his or her rights under the anti-discrimination laws, or has assisted another person to do so. Victimisation is essentially a form of retaliation (e.g. the employer retaliates against a person who previously made a discrimination allegation against the company by refusing on that account to offer them a job or a promotion, or by dismissing him/her). Victimisation cannot be justified and is always unlawful.
- Link to Unified Guide
- Link to Harassment & Bullying guide
- Model procedure for dealing with complaints of harassment
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