The Employment Rights Act 1996 proscribes Employers from Discriminating against Workers and Employees on the grounds of a Protected Characteristic. The Equality Act 2010 prescribes these seven Protected Characteristics: Age, Disability, Race, Religion or Belief, Sex, Sexual Orientation, Marriage/Civil Partnership, Pregnancy and Maternity, and Gender Reassignment.
The law applies to an Employer’s other Employees: A Claimant may Claim against an Employer for an act or omission committed by one of their co-workers for which the Employer will be liable. The Discriminatory Act does not need to be committed by the Employer personally (if a sole trader), a partner of a general partnership or partner/designated member of a limited liability partnership, or director or senior manager of a limited company.
There are two forms of Discrimination: Direct Discrimination and Indirect Discrimination.
Direct Discrimination is deliberately targeting an Employee on the grounds of a protected characteristic. For example, this may include bullying, harassment, and offensive verbal comments directed at the Employee’s Race, such as calling them a derogatory racial slur (i.e., The “N-Word”) for the purposes of upsetting and humiliating them.
Indirect Discrimination is where an Employer treats their Employees equally, but this has the effect of disadvantaging one particular group who have a Protected Characteristic. For example, an Employer could treat all Employees equally as if they were able-bodied and require them to perform the same manual labour. However, this would have the unintentional effect of Discriminating on the grounds of Disability if an Employee is incapable of lifting heavy objects due to their physical Disability.
Actual and Constructive (i.e., the Employee feels that their treatment has been such that they have no choice by to resign from Employment) Dismissal on the Grounds of a Protected Characteristic is an Inadmissible Reason for Dismissal and therefore the Dismissal is Automatically Unfair. In addition, the normal two-year qualifying period of continuous employment for an Employee to accrue the right to bring a Tribunal claim does not apply and the Claimant may issue Tribunal Proceedings irrespective of the length of their Employment for Discrimination and Dismissal from Day 1 of their Employment.
In Discrimination Claims, in addition to the Basic and Compensatory Awards for Unfair Dismissal, a Claimant may also claim Damages for Detriment and Injury to Feelings under the Vento Guidelines. The damages will depend on the length and severity of the harassment and victimisation against the Claimant. This is quite a complex area, but there is useful advice on the ACAS and Citizens Advice websites.
A Claimant has three months from the Effective Date of Dismissal, or the Discriminatory Act complained of to lodge a Claim Form ET1 with the Regional Employment Tribunal. This is a very brief time limit which is strictly enforced. I therefore recommend that you act as quickly as possible by instructing specialist employment solicitors to protect your position and advise you fully on your prospects of success.
You must also notify the Government’s free and impartial employment dispute advisory service: the Advisory, Conciliation and Arbitration Service (“ACAS”) to commence the compulsory Early Conciliation Process (“ECP”). ACAS are not a firm of solicitors or legal aid providers, but they will attempt to facilitate an early settlement between the parties without the need for Tribunal Proceedings.
During the ECP, the three month-limitation period to issue a Claim Form ET1 is suspended. If ECP fails, ACAS will issue the parties with a Certificate which will give the Claimant at least one month from the date of the Certificate (depending on the timings) to issue a Claim Form ET1.