Discrimination

Everyone has the right not to be subjected to discrimination at work. In this article we look at what characteristics are protected by discrimination legislation.

9th April 2018

Discrimination occurs when you (or someone else) are treated differently in the workplace on the basis of one or more of what are termed ‘protected characteristics’. 

The following protected characteristics are protected from discrimination under the Equality Act 2010:

  • age
  • disability
  • gender
  • marriage or civil partnership
  • pregnancy or maternity leave
  • race, including their nationality, skin colour or ethnic or national origins
  • religion or belief (or lack thereof)
  • sexual orientation
  • gender reassignment.

It is important to note that you do not actually need to possess a specific characteristic to be discriminated against for it; if somebody believes, for example, that you are gay, and treats you differently as a result, this can still count as discrimination even if you are not actually gay.

It is also possible to be discriminated against because you are closely associated with a person with a protected characteristic. For example, if you have a disabled child, or are married to someone of a particular nationality, and you are treated poorly in the workplace because of this, this counts as discrimination.

Types of discrimination

The Equality Act 2010 defines six main different types of discrimination under the law.

Direct discrimination

The first of these is direct discrimination, which is the most obvious type. This is where people with a protected characteristic are treated less favourably than others in the workplace, for no other reason than the fact they have that characteristic.

If you have been subject to direct discrimination, you may find that an employer treats you unfairly in comparison to other people when it comes to:

  • getting hired in the first place
  • wages and perks
  • the terms and conditions of your contract
  • opportunities for training and promotion
  • dismissal and redundancy

An example could be an employer refusing to promote a skilled female worker and instead offering a senior role to a male employee who is less qualified for the position.

Indirect discrimination

Another form of discrimination, which can be less obvious, is indirect discrimination. This happens when an employer’s rules, arrangements or practices somehow put people with certain protected characteristics at a disadvantage. Such rules may seem fair on the surface as they technically apply to everyone, but they actually disadvantage individuals belonging to certain groups and therefore count as discrimination.

An example of indirect discrimination would be a ban on headwear in the workplace, which might seem reasonable until you consider that some religions call for headwear to be worn. There could, of course, be valid reasons for an employer to bring in such a policy, but they must consider how it may affect employees and consider whether there are other proportionate ways to achieve the same goal without putting particular groups at a disadvantage.

Harassment

Harassment is another type of discrimination in the workplace. Harassment is defined as ‘unwanted conduct’ related to a protected characteristic which has the purpose or effect of violating the employee’s dignity, or creating an intimidating, hostile, degrading humiliating or offensive environment for them. It can take many forms, including direct insults, people talking behind your back, and general poor treatment from others.
You can make a complaint about being harassed even if the perpetrator does not work for the company; for example, if they are a customer or someone from another company.

Victimisation

Victimisation is when someone is treated badly because they have raised a complaint about discrimination, taken action under the Equality Act, or supported someone who did. 

Discrimination arising from disability

This type of claim is specific to the protected characteristic of disability. You will need to show that you were subjected to unfavourable treatment because of something that arose in consequence of your disability. An employer can defend any such unfavourable treatment by showing that it was a “proportionate means of achieving a legitimate aim”.

Failure to make reasonable adjustments (disability only)

Where a disabled employee is put to substantial disadvantage in the workplace in relation to a 'provision, criterion or practice', physical feature, or failure to provide an auxiliary aid, an employer is under a duty to take reasonable steps to remove the disadvantage and/or to provide the auxiliary aid. 

Is discrimination ever acceptable?

It is permissible for an employer to refuse to offer a job to a person from a certain group because they would be unsuited to the role. However, it is important for them to ensure that this relates to actual job requirements.

For example, people under 18 are not legally allowed to sell alcohol, so it would not be classed as age discrimination if an employer refuses to hire an under-18 for a job where selling alcohol is essential to the role.

However, if an employer refused to employ a member of the Muslim faith under the assumption that they would refuse to handle alcohol, this would count as discrimination.

It would also be discrimination if an employer excluded some applicants with the excuse that handling alcohol was an essential part of the role, when it was actually only a minor duty which could easily be dealt with by someone else. If an employer plans to exclude certain people from a role, they must only do so on the basis of tasks which are actually vital to the job at hand.

Employers are also allowed to discriminate in favour of people who possess a protected characteristic in certain circumstances.

If they believe that people with a particular protected characteristic are at a disadvantage because of it, that they have different needs because of the characteristic, or that there is a disproportionately low number of people with that characteristic involved in a certain activity (for example, a specific field or industry), they may take action in favour of them. This is known as positive discrimination.

What to do if you think you have been discriminated against

If you believe you have been discriminated against at work, you should first informally discuss the matter with your employer. You may wish to talk to your manager or contact your HR department about the issue.

If your problem is not resolved, you have other options including contacting ACAS, Citizens Advice, a representative from your trade union, or seeking specialist legal advice. They will help advise you on your next steps and options.

There are very short limitation periods to bring employment tribunal claims – generally three months less one day from the date of the last act of discrimination.

The majority of cases will require an employee to engage in mandatory ACAS Early Conciliation as a pre-requisite to bringing a tribunal claim.

Equality and discrimination

Businesses must do all they can to prevent discrimination in the workplace and being up-to-date with equality law is essential.

April 2018 Learn more
Your rights at work

To help ensure that people are treated fairly by their employer, all workers have a rights under the law.

April 2018 Learn more
Grievances at work

If you have a problem at work that has not been resolved through informal discussion, your next step should be to raise a formal grievance through your employer's grievance procedure. This means they must take steps to fix the issue.

April 2018 Learn more

Read more from the DAS Law blog

Employment disputes Working on Christmas Day – your rights if you end up on the rota

It's a day of rest for millions, but for others it’s double the workload as business continues as normal – but with fewer staff. Can you refuse? Hannah Parsons outlines your rights.

December 2018
General advice , Employment disputes The dos and don’ts of the office Christmas party

Hannah Parsons, solicitor at DAS Law, has the following advice to ensure that your office party does not result in writs and recriminations.

December 2018
Employment disputes International Stress Awareness Day: your workplace rights

For this Wednesday’s International Stress Awareness Day, Hannah Parsons, a solicitor at DAS Law, takes a look at what the law says your employer needs to do about stress.

November 2018
Employment disputes Your rights if it’s too cold in the workplace

As the winter weather arrives with a vengeance, chilly workplaces across the UK are potentially having serious impacts on the health and effectiveness of employees.

October 2018
Employment disputes How to deal with mental health discrimination at work

There are legal protections in place to support those with a mental health condition. Here’s what you need to know if you are being treated unfairly at work because of your mental health.

October 2018
Employment disputes How to navigate employment rights in the gig economy

If you are unsure about your employment status, the rights and benefits that come with it, you need advice from professionals who understand the law.

July 2018
Employment disputes Don’t get a red card while watching the World Cup at work

If you are planning on watching World Cup matches at work there are a number of important things to consider.

July 2018
Employment disputes Winter commuting: I thawed the law

If you run your own business, bad weather can cause chaos when staff can’t get in. What employment law regulations are in place when handling transport troubles in winter?

February 2018
Employment disputes 9 questions and answers about the gig economy

We talked about the basics of the gig economy with Allison Whiston, Head of Employment and Commercial at DAS Law.

February 2018
Employment disputes Suspension: a neutral act?

A decision in a recent case determined that suspension was not a ‘neutral act’ and can amount to a breach of trust and confidence.

January 2018
Employment disputes Constructive & wrongful dismissal

If you feel forced to resign, this may count as constructive dismissal. If you are dismissed in breach of the terms of your employment contract, this is known as wrongful dismissal.

April 2018
Employment disputes , Protecting your business Managing stress in the workplace

For National Stress Awareness Day (Wednesday 1st November), we take a look at what the law says your employer needs to do about stress

October 2017
Employment disputes Disciplinary action

Your employer may take formal disciplinary action against you if they are unhappy with any aspect of your behaviour in the workplace. However they must follow a fair procedure when doing so.

April 2018