Dismissal and Discrimination

Discriminatory dismissal occurs when the reason for dismissal is connected to a protected characteristic. These claims have stronger protections than ordinary unfair dismissal.

Protected Characteristics

The Nine Characteristics

Under the Equality Act 2010:

Characteristic	What It Covers
Age	Any age or age group
Disability	Physical or mental impairment
Gender reassignment	Those transitioning
Marriage/civil partnership	Being married or in civil partnership
Pregnancy/maternity	Pregnancy, childbirth, maternity leave
Race	Colour, nationality, ethnic origins
Religion/belief	Religion or philosophical belief
Sex	Being male or female
Sexual orientation	Orientation towards same/different/both sexes

Types of Discrimination

Direct Discrimination

Treating someone less favourably because of a protected characteristic.

Example: Dismissing someone because they're pregnant.

Indirect Discrimination

Applying a provision, criterion, or practice that:

• Applies to everyone
• Puts people with protected characteristic at disadvantage
• Puts the individual at that disadvantage
• Cannot be justified

Example: Requiring all staff to work Saturdays, indirectly discriminating against those whose religion prohibits Saturday work.

Harassment

Unwanted conduct related to a protected characteristic that:

• Violates dignity, OR
• Creates intimidating, hostile, degrading, humiliating, or offensive environment

If employer dismisses someone to cover up harassment, that's also discriminatory.

Victimisation

Treating someone badly because they:

• Made a discrimination complaint
• Supported someone else's complaint
• Raised concerns about discrimination

Example: Dismissing someone after they complained about sexist comments.

Discriminatory Dismissal Examples

Age

• "We need fresh blood" (dismissing older workers)
• "You won't fit in with the young team"
• Forcing retirement without justification
• Making older workers redundant first

Disability

• Dismissing for sickness when illness is a disability
• Not considering reasonable adjustments
• "We don't think you can cope"
• Treating disability-related absence as misconduct

Pregnancy/Maternity

• Dismissal during pregnancy
• Dismissal because employee wants maternity leave
• Dismissal while on maternity leave
• Not keeping job open during maternity

Race

• "Customers might not be comfortable"
• Dismissing for accent or language skills without justification
• Racial harassment followed by dismissal
• Using ethnic origin in selection criteria

Religion

• Dismissing for wearing religious items
• Not accommodating religious observance
• Dismissing for refusing to do something against beliefs
• Targeting people of particular religion

Sex/Sexual Orientation

• "Maternity leave is disruptive"
• Different treatment for men and women
• Dismissal after coming out
• Harassment because of sexuality

No Service Requirement

Key Advantage

Unlike ordinary unfair dismissal:

• No qualifying period
• Can claim from day one
• Even during probation
• Even if dismissed before start date

Why This Matters

If dismissed after 3 months for being pregnant:

Claim	Available?
Ordinary unfair dismissal	No - need 2 years
Pregnancy discrimination	Yes - no service needed

Burden of Proof

How It Works

In discrimination cases:

1. Employee must show facts from which tribunal could conclude discrimination occurred
2. If they do, burden shifts to employer
3. Employer must prove non-discriminatory explanation
4. If they can't, tribunal finds discrimination

What Employee Must Show

• They have protected characteristic
• They were dismissed (or treated unfavourably)
• Facts suggest connection between the two

What Employer Must Prove

• Decision was not because of protected characteristic
• There was a non-discriminatory reason
• That reason was the actual reason

Reasonable Adjustments (Disability)

The Duty

Employers must make reasonable adjustments where:

• Provision, criterion, or practice puts disabled person at disadvantage
• Physical feature puts them at disadvantage
• Absence of auxiliary aid puts them at disadvantage

Before Dismissing for Disability-Related Reasons

Employer must consider:

• What adjustments could be made?
• Would they remove the disadvantage?
• Are they reasonable to implement?

Failure to Adjust

If employer dismisses without considering adjustments:

• Likely to be discrimination
• Dismissal probably unfair too
• Even if ostensibly fair procedure followed

Compensation

Unlimited

Unlike unfair dismissal:

• No statutory cap
• Full financial losses
• Injury to feelings
• Potential aggravated damages

Types of Compensation

Type	Purpose
Financial losses	Past and future earnings
Injury to feelings	Hurt caused by discrimination
Personal injury	If psychiatric harm caused
Aggravated damages	If employer behaved badly

Injury to Feelings

Vento bands (updated regularly):

Band	Range	Severity
Lower	£1,200 - £11,700	Less serious, one-off
Middle	£11,700 - £35,200	Serious cases
Upper	£35,200 - £56,200	Most serious
Exceptional	Above £56,200	Truly exceptional

Bringing a Claim

Time Limit

• 3 months less 1 day from the discriminatory act
• For dismissal, usually the dismissal date
• ACAS early conciliation extends time

ACAS Early Conciliation

• Must contact ACAS first
• Get early conciliation certificate
• Then can bring tribunal claim

What to Include

• Which protected characteristic
• What type of discrimination
• Facts supporting claim
• Losses and injury to feelings

Proving Your Case

Evidence to Gather

• All correspondence about dismissal
• Any discriminatory comments or treatment
• Comparator evidence (how others treated)
• Statistics if relevant (e.g., age of those dismissed)
• Notes of conversations
• Witness statements

Questionnaire Procedure

Although formal questionnaire abolished:

• Can still ask questions
• Tribunal can draw inferences from failure to answer
• Useful for establishing facts

Comparators

Compare your treatment to:

• Hypothetical person without your characteristic
• Actual comparable person
• How would they have been treated?

Defending Against Discrimination Claims

Employer's Arguments

Defence	What Employer Must Show
Legitimate aim	Genuine business reason
Proportionate means	Least discriminatory option
Not because of characteristic	Different reason for dismissal
Occupational requirement	Characteristic genuinely required

Occupational Requirement

Very limited - only where:

• Characteristic is genuine requirement for role
• It's a proportionate means of achieving legitimate aim
• Examples: actor for specific role, religious leader

Relationship to Unfair Dismissal

Can Claim Both

If you have 2 years' service, you can claim:

• Unfair dismissal (capped compensation)
• Discrimination (unlimited compensation)

Strategy

Often claim both because:

• Different tests apply
• Different compensation
• Different evidence may succeed

If Only Discrimination Claim

Without 2 years' service:

• Discrimination is your only route
• Focus on discriminatory element
• No unfair dismissal claim available