The police watchdog, the Independent Police Complaints Commission (IPCC), is facing legal action from a Barrister who has issued a claim to an Employment Tribunal for race and sex discrimination. Natasha Sivanandan applied for a job in January as an investigator with the police watchdog but was not called in for interview, she subsequently discovered that 32 out of 35 investigators employed by the IPCC were white.
Alongside her claim for race discrimination Ms Sivanandan is running a claim for sex discrimination because the role for which she applied required that the candidate had to show experience of running investigations within the last 12 months. She claims that this amounts to direct and/or indirect sex discrimination because it may have a disproportionate impact on women who were more likely to have had career breaks or have childcare responsibilities meaning that they may not have accumulated sufficient investigations in the preceding year to meet the stipulations of the role. The case for indirect sex discrimination has been struck out by the Employment Tribunal but the case for direct race and sex discrimination has been allowed to continue.
IPC and Penna (its recruitment agency) strenuously deny race and sex discrimination and state that Ms Sivanandan was not called for interview because she lacked sufficient experience for the role. They have gone as far as attempting to have the claim thrown out but the tribunal have ruled that Ms Sivanandan can proceed with her claim. Carol Porter, the employment judge has, however, described her chances of a successful outcome as ”remote”.
Ms Sivanandan was awarded £420,000 two years ago when she suffered discrimination in an application process to work in race relations in Hackney.
Race Discrimination
Section 9 of the Equality Act 2010 deals with race discrimination and prohibits unfair treatment on the grounds of colour; nationality; ethnic or national origins.
Sex Discrimination
Section 11(a) of the Equality Act 2010 prohibits gender discrimination against either a man or a woman. In common with race discrimination, sex discrimination comes in many guises and there are various forms in which it might be unlawfully perpetrated.
Direct Discrimination describes the situation in which one person is treated less favourably than another as a result of their gender, race, disability etc. A person bringing a claim for direct discrimination must show that a comparator (another person of the opposite sex or of a different race in this case) has been treated differently.
Indirect Discrimination occurs when a ”provision, criterion or practice” (PCP) is applied which is discriminatory. It means that although a PCP applies equally to all employees, a particular group of employees, for example those who share a particular characteristic such as all female employees, are disproportionately affected.
Example
A company advertises a position stipulating that all candidates must have a GCSE in English. Although not an obviously discriminatory advert the stipulation indirectly discriminates against candidates who have not been educated in the English and Welsh system. As such it could be indirect race discrimination against those of a different national origin.
An employer can defend indirect discrimination if it can prove that the PCP is a proportionate means of achieving a legitimate aim. In other words, if the aim is reasonable and non-discriminatory and any indirect discrimination which occurs is merely an unfortunate side effect when balanced against the need to achieve the aim then an employer will be objectively justified in its actions.