What is discriminating between the employee and other employees of the employer?

 

 

To discriminate is to make a distinction in favour of or against a person or thing.[1]

Discrimination between employees involves an employer deliberately treating an employee, or a group of employees, less favourably its other employees.[2]

The element of intent is central to establishing discrimination. To discriminate requires a conscious decision to make a distinction.[3]

Discrimination in this context is not limited to direct discrimination and could encompass indirect discrimination.[4] Indirect discrimination is conduct that is ‘facially neutral’ but may nevertheless amount to, or result in, less favourable treatment.[5]

Determining whether an employer has discriminated between an employee and other employees requires a comparative test between the applicant and another employee who acted in the same way as the employee in question.[6]

References

[1] Hodkinson v The Commonwealth [2011] FMCA 171 (31 March 2011) at para. 176, [(2011) 207 IR 129].

[2] ibid., at para. 178.

Updated time

Last updated

15 June 2018

 

 

 

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