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Equal rites

This year is likely to see a rise in discrimination claims after some interesting developments in this area of the law.

Last month, I looked at the crucial distinction between employed and self-employed status and the perils of getting it wrong, such as unexpected tribunal claims or tax demands. Provided you get the facts straight, however, it is often fairly easy to get it right.

In contrast, discrimination law is a field which has very wide application indeed. Race and sex discrimination laws have been in force for over 30 years but the number of claims is still increasing. There have been a host of recent additions to the law, such as discrimination on the grounds of religion, belief, sexual orientation and age.

Discrimination law covers anyone who is personally contracted to undertake work, including independent contracts, and not just those who come under the strict terms of an employment relationship in the narrow sense that we might expect.

It also applies to a wide circle of possibilities. It can occur before employment, for example, in advertisements or at interview stage, during the period of engagement, whether at work or away from the office, and even after employment has come to an end, such as in the provision of references.

There are no length of service requirements, unlike for unfair dismissal where the employee has to be employed for a year to claim. Unlike the cap on compensation awards for unfair dismissal, redress is unlimited.

A significant feature of discrimination law is that it is not only the employer who can pick up the tab for a discrimination complaint but the individual who is accused of discrimination can find themselves being sued personally. This is probably the most under-appreciated aspect of discrimination law.

If a discriminatory act occurs in the course of employment, an employer can find itself responsible for acts of which it was unaware, unless it has done everything that is reasonable to prevent discrimination occurring in the first place. How many text messages or emails are being sent from your workplace of which you are completely unaware? Have staff been told what is and what is not acceptable behaviour?

The Sex Discrimination Act has been amended to make employers liable for discrimination perpetrated by third parties, such as clients and contractors, unless they did all they reasonably could to prevent discrimination happening. This amendment will have effect from April this year.

Obvious examples of spreading this awareness are providing staff with training, having proper equal opportunities policies in place and making sure they are implemented properly. You should also make sure that visitors abide by your rules.

I could not tell you the number of times I have heard people say there is a policy about this somewhere on their hard drive but they are not sure where and have never even opened the document. Even those at the senior end of the firm or, worse, the HR department, may be guilty of this.

There is now a new breed of discrimination called associative discrimination following on from an opinion put forward by the Advocate General although this is subject to confirmation by the European Court of Justice.

In a case that was heard towards the end of 2006, a secretary at a law firm (ironically, lawyers are seeing their own practices getting sued on a rapidly increasing basis) sued her employer over its attitude to her need for time off to care for her disabled son. She complained that the firm was not receptive to her requests for time off, often rather unexpectedly, to deal with problems involving her child.

The question was, while she was not herself disabled within the ambit of the legislation, could she claim that she was being discriminated against because of her disabled child? The indication from Europe is that the answer is yes.

Acts of unintended discrimination can often take place by email banter. Remember that all aspects of conduct are relevant for the purposes of discrimination law. Discrimination is in the eye of the beholder. In other words, it must be looked at from the complainant’s perspective, which can result in ill-advised texts or emails becoming discriminatory.

Any conduct that takes place more than once, and which causes anxiety or distress, can result in a protection from harassment complaint which can be brought up to six years after the event took place.

Clearly, an element of common sense and discretion is needed by all concerned but it is worthwhile for everybody to increase their levels of self-awareness in this complex and costly area.

James Tait is an associate at solicitor Shakespeare Putsman

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