Discrimination

2. Test of Discrimination

The test of discrimination is not what you set out to do, but how it affects the people on the receiving end. You may be involved in discriminatory practices without realising it.

2.1 If you treat somebody less favourably by practising illegal forms of discrimination (see 1), you are exercising direct discrimination.

• This can occur when you appoint, promote or dismiss someone, or deny access to training or other opportunities.
• If an employee has evidence which suggests discrimination, it is now up to the employer to prove it is not.
• Direct discrimination may be found even if you acted on several grounds, only one of which is illegal - eg if you sack someone because she is incompetent and pregnant.
• If you sack someone who is disabled for having poor attendance, but the poor attendance is caused by the person's disability, that counts as discrimination.
• Direct discrimination is permissible only in certain very limited circumstances (see 6).

2.2 Indirect discrimination occurs if you impose a 'provision, criterion or practice' which members of one group are much less likely to be able to comply with, and which is not justified by the requirements of the job.

• For example, only employing factory packers who have GCSE English.

2.3 If you treat somebody less favourably because of actions (or potential actions) in connection with discrimination proceedings, you could be guilty of victimisation.

• For example, sacking someone who has brought (or is threatening to bring) discrimination proceedings.

2.4 Institutional discrimination occurs when systems and practices disadvantage some groups when compared with others.