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llowing a discriminatory advert to appear in their publication. A publisher will have a defence to a discrimination claim if it can be shown that the publisher relied on a statement from the employer stating that there was no intention to discriminate. Employers may also indicate in the advertisement that there is no intention to discriminate by stating that they are an ‘equal opportunities employer’. Only the Equality and Human Rights Commission can bring proceedings for a breach of these sections. Individuals cannot complain to an Employment Tribunal on this basis, but they are able to use copies of advertisements in tribunal proceedings. Such copies would support a claim for discrimination after they have applied for a job and been rejected. In Centrum voor Gelijheid van Kansen en voor Racismebestrijding v Ferma Feryn NV (2008) the ECJ confirmed that a Belgian employer’s public statement that it would not recruit persons of Moroccan origin amounted to direct discrimination. Using discriminatory practices Section 37 of the Sex Discrimination Act 1975 (s 19, EA 2010) and s 28 of the Race Relations Act 1976 (s 19, EA 2010) state that it is unlawful for employers to use discriminatory practices. This would cover things such as having a policy of not employing women or people from ethnic minorities. Individuals cannot make a complaint to the Employment Tribunal under these sections. Actions can only be brought by the EHRC. The Commission may issue a non-discrimination notice to an employer warning it not to use discriminatory practices in the future. If an employer does not adhere to this notice, the commission may apply for a court injunction to prevent further discrimination. (See further Chapter 1 at pages 27 and 28.) Instructing someone to discriminate Section 39 of the Sex Discrimination Act 1975 (s 111, EA 2010) and s 30 of the Race Relations Act 1976 (ss 111 & 112, EA 2010) state that it is unlawful to instruct someone to discriminate. An example of this offence would be an employer instructing an employment agency not to send it workers from ethnic minorities. Pressurising someone to discriminate Section 40 of the Sex Discrimination Act 1975 (s 111, EA 2010) and s 31 of the Race Relations Act 1976 (ss 111 & 112, EA 2010) state that it is unlawful to pressurise or attempt to induce a person to discriminate. Employers should not offer an employee incentives to discriminate or threaten them with, for example, demotion or dismissal if they do not. Aiding unlawful discriminatory acts Section 42 of the Sex Discrimination Act 1975 (ss 111 & 112, EA 2010) and s 33 of the Race Relations Act 1976 (ss 111 & 112, EA 2010) state that it is unlawful to assist someone in the commission of discriminatory acts. 2 Discrimination in employment
Are employers liable for the discriminatory actions of their employees? ARE EMPLOYERS LIABLE FOR THE DISCRIMINATORY ACTIONS OF THEIR EMPLOYEES? Section 41 of the Sex Discrimination Act 1975 (s 109, EA 2010) and s 32 of the Race Relations Act 1976 state that employers may be vicariously liable for the discriminatory actions of their employees. For a general discussion on vicarious liability, see Chapter 9 at page 349. Generally, employers will only be liable for those actions of their employees which take place in the ‘course of their employment’. However, in discriminatory situations employers may be liable even where employees act outside the