384 Chapter 14Employment (2): Discrimination and health and safety
women with young children from continuing in the job. The new shift pattern applies
to men as well as women (s. 19(1)(a)). It puts some women at a particular disadvantage
(s. 19(1)(b)). One particular woman shows that she is put at a disadvantage because she cannot
keep the job if the pattern is imposed (s. 19(1)(c)). This will be indirect discrimination unless
the employer can show that imposing the new shift pattern is a proportionate means of
achieving a legitimate aim (s. 19(1)(d)).
Section 20 requires employers to make reasonable adjustments to see that disabled
employees are not disadvantaged by work practices or by physical features of the work-
place. If necessary, the employer must also provide auxiliary aids. If the employer fails to
comply with this duty then this amounts to discrimination.
Section 23 requires that a person claiming direct, dual or indirect discrimination does so
by reference to acomparator. The comparator can be a real or a hypothetical person whose
circumstances are the same as the claimant’s, except that the comparator does not share
the claimant’s protected characteristic. So, for example, an employee who claimed to be
discriminated against on account of being a woman would have to do so by reference to a
male comparator whose circumstances were the same as her own. When considering cases
of direct or dual discrimination on grounds of disability, the circumstances can include the
abilities of the claimant and the comparator to do the job.Harassment
Section 20(1) provides that a person (A) harasses another (B) if:
(a) A engages in unwanted conduct related to a relevant protected characteristic, or of a
sexual nature; and
(b) the conduct has the purpose or effect of –
(i) violating B’s dignity; or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment
for B.
Examples of harassment might include an employer putting up a topless calendar which
some employees, male or female, found offensive or a manager making an employee listen
to racially offensive jokes. When considering whether or not the conduct has the effect
referred to in s. 20(1)(b), three matters have to be taken into account. These matters are: the
perception of B; the other circumstances of the case; and whether it is reasonable for the
conduct to have that effect.Victimisation
Section 27(1) provides that a person (A) victimises another person (B) if A subjects B to a
detriment because:
(a) B does a protected act; or
(b) A believes that B has done, or may do, a protected act.
Section 27(2) states that each of the following is a protected act:
(a) bringing proceedings under the Act;
(b) giving evidence or information in connection with proceedings under the Act;
(c) doing any other thing for the purposes of or in connection with the Act;
(d) making an allegation (whether or not express) that A or another person has contra-
vened the Act.