Equal opportunities and discrimination

Workplace discrimination law relates to discrimination arising from workplace issues, including: 

• dismissal 
• employment terms and conditions 
• pay and benefits 
• promotion and transfer opportunities 
• training 
• recruitment
• redundancy

Workplace discrimination laws protect job applicants, current and former employees and non-employee workers or consultants. There are certain characteristics that are covered by discrimination regulations (known as 'protected characteristics'). The protected characteristics are: 

• sex
• race
• disability
• pregnancy
• sexual orientation
• gender reassignment
• marital or civil partner status
• religion or belief
• age

In Scotland, specific duties apply in circumstances where a public authority awards a contract or a framework agreement, provided that it is covered by the Public Contracts (Scotland) Regulations 2015. This is the case where a public authority:

• awards a contract or framework agreement on the grounds of the most economically advantageous offer. If this is the case, the public authority must consider if the award criteria should include considerations to better perform the duty to ensure equality
• proposes to specify performance conditions in a contract or framework agreement. If this is the case, the public authority must consider if these conditions should include considerations to better perform the duty to ensure equality

The prohibited behaviours are:

• direct discrimination - less favourable treatment based directly on the protected characteristic (eg 'a company prefers to recruit over 30s'). There is rarely a legal defence once direct discrimination is proved
• indirect discrimination - where a set of criteria or requirements is applied equally but disadvantages a protected group (eg a requirement to work full time indirectly discriminates against women, due to child-care). Indirect discrimination is lawful if it is a proportionate means of achieving a legitimate aim
• harassment - unwanted conduct violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment 
• victimisation - detrimental treatment in response to making or supporting a discrimination claim (whether or not the claim is correct)

Employers can be liable for the actions of an employee where there is a case of harassment and/or discrimination in the course of employment. 

However, defence is available to employers, if they can show that they took all ‘reasonable steps’ to prevent such behaviour.

Examples of an employer taking reasonable steps include:

• having an Equal opportunities policy and Anti-harassment and bullying policy in place  
• reviewing and keeping policies up to date 
• making employees aware of the relevant policies and consequences of breaching those 
• managing grievances in line with the equal opportunities policy
• adopting and reinforcing a zero-tolerance approach in the workplace