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:
- 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.
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.
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 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 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.