Discrimination and Redundancy: A Guide

With the growing number of redundancies being made across the UK, we have produced a guide on discrimination and redundancy. The two areas of law often go hand in hand as employers can unlawfully select employees for redundancy based on a discriminatory reason. Redundancy lawyers should be contacted in any case when the employee feels they have been discriminated against for any particular reason, thus resulting in an unfair redundancy.

What is discrimination at work?

It is a common misconception that discrimination is simply unfavourable treatment. To bring a claim related to discrimination under the Equality Act 2010, the treatment must be in relation to one of the following protected characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation
  You are not automatically discriminated against if you fall into one of these categories e.g. if you have a disability. Therefore, if you are a disabled employee and you have been selected for redundancy, this does not mean it is automatically unfair. However, if you have been selected for redundancy because of one of the above protected characteristics (e.g. disability), that would be discrimination.

Examples of discrimination at work

Under the Equality Act 2010, there are several potential claims related to discrimination. From our experience, we have outlined some of the most common types of discrimination in relation to redundancy below.

1. Direct Discrimination

Direct discrimination is where you are treated less favourably than another person due to a protected characteristic. For example, where you have been selected for redundancy because of your race. This would be race discrimination at work.

Another example would be pregnancy discrimination at work, i.e. if you are selected for redundancy because you are pregnant. Interestingly, there is extra protection from redundancy for those employees who are pregnant or on maternity leave. Employers must offer employees that fall into this category suitable alternative employment as a priority over other employees.

You can also be directly discriminated against where you are perceived to have a protected characteristic, or where you are associated with someone with a protected characteristic. If you think you have been a victim of age discrimination at work, race discrimination at work, or any other type of discrimination, contact our expert redundancy lawyers at KLG today.

2. Indirect Discrimination

Indirect discrimination is where a provision, criterion, or practice (‘PCP’), disadvantages you, a holder of a protected characteristic, and you suffer less favourable treatment because of this PCP.

The most applicable example of indirect discrimination in a redundancy scenario, is where the redundancy selection criteria disadvantages you as a holder of a protected characteristic and you are selected for redundancy (i.e. suffer less favourable treatment). For example, if you have a disability that means you spend a lot of time on sick leave, it may be indirect discrimination to consider sickness related absence in the selection criteria.

Another example of being selected on unfair grounds for redundancy is the ‘last in first out’ approach, as this discriminates against the typically younger workforce who have just joined the company. This could be age discrimination at work.

3. Failure to make reasonable adjustments

If you have a disability, your employer is obliged to make reasonable adjustments in the workplace to support you with the disability to help you fulfil your job duties. Employers often seek advice from occupational health assessors to determine how to support the disability. The adjustment itself will depend on the nature of your disability e.g. an ergonomic chair or increased break times.

The obligation to make reasonable adjustments continues throughout a redundancy process. For example, your employer may need to consider alternative employment at your existing office, rather than a different location, if travel is going to be an issue for you and your disability. They may need to make adjustments, such as allowing you a later starting time.

What to do if you think you’ve been unfairly dismissed

If you think you’ve been unfairly dismissed, then you’ll need to consider the steps to take to make an unfair dismissal claim or discrimination claim. KLG can advise and consult you in unfair dismissal claims and redundancy rights.

Making a discrimination claim against your employer

If you are considering a discrimination claim against your employer, the first step would be to collate any evidence you have to support your accusations. Without evidence, it may be more difficult to prove you have been discriminated against.

You can then raise this evidence in the form of a grievance against your employer or the individual who has discriminated against you. Further details of your company’s specific grievance procedure should be contained in your staff/employee handbook. The aim of the grievance procedure is to rectify any detriment you have suffered from the discrimination.

If the grievance process has not had a desirable outcome, you may wish to contact ACAS and start the early conciliation process. You must contact ACAS within 3 months less one day of the last discriminatory act, or you risk your claim being out of time. The aim of this process is to reach a settlement without the need to proceed to the Employment Tribunal. If ACAS Early Conciliation is unsuccessful, you will need to file an ET1 claim form should you wish to continue seeking a remedy.

Making an unfair dismissal claim against your employer

You may wish to bring a claim for unfair dismissal if, for example, you feel that you have been unfairly selected for redundancy (e.g. for a discriminatory reason), or the redundancy process is flawed. You will need two years of continuous employment to bring a claim for unfair dismissal.

You should exhaust the internal redundancy appeal process, as you may be re-instated without the need to progress your matter further. If your dismissal is upheld, you can contact ACAS within 3 months less one day of your termination date to start the ACAS Early Conciliation process. Again, if this process is unsuccessful, you will need to file an ET1 claim form to progress your matter to the Employment Tribunal.

Conclusion

The above information should not be confused with legal advice. Every situation is unique, and at Kalra Legal Group our team of experienced employment solicitors can assist you with your legal claims. To arrange a meeting please call us on 0330 221 0684 or e-mail [email protected].