What is discrimination?
The law defines four kinds of discrimination:
- Direct discrimination
- Indirect discrimination system
The definition of race as a protected characteristic includes colour, nationality, national origin (i.e. from Jersey) and ethnic origin. Since 1st September 2015 sex, sexual orientation, gender reassignment, pregnancy and maternity are protected characteristics.
A person is directly discriminated against when they are subjected to less favourable treatment by another because of a protected characteristic. ‘Less favourably’ means less favourably than other employees are, or would be, treated. For example, an applicant is not short-listed for a job because her name suggests that she is black African. In fact it is her husband’s name and she is British white.
A person is indirectly discriminated against if an employer applies a ‘provision, criterion or practice’ which is discriminatory because of a protected characteristic, e.g. a job advert which specifies applicants must have GCSEs because this disadvantages applicants from other countries not having the GCSE qualification. A ‘provision, criterion or practice’ is a working condition or rule that, even though applied to the whole workforce, disadvantages one (or more than one) employee(s), unless it can be shown that the condition was a proportionate way of achieving a justifiable aim; for example, to reduce inequality in the workplace.
Victimisation occurs where a person is treated less favourably than others because the person has:
- Tried to make or have a complaint heard under the Discrimination Law;
- Given evidence in support of a complaint under the Discrimination Law;
- Raised a complaint alleging that an act prohibited by the Discrimination Law has occurred.
A person may make a claim that they have been harassed if they have been subjected to unwanted conduct in relation to their race or sex which violates the dignity of the individual or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person.
The law prohibits acts of discrimination in areas including paid and voluntary work, recruitment, education, goods and services, clubs, professional bodies and the management of premises.
Not only will the employee who committed the alleged discriminatory act be potentially liable, an employer may liable for a discriminatory act of an employee committed in the course of employment, whether or not the employer was aware of it.
A possible defence for the employer is to show that it had an equal opportunities policy in place, that it trained its employees on discrimination and equal opportunities and showed zero tolerance towards acts of discrimination.