Discrimination

What is discrimination?

Discrimination is when someone is treated unfairly because of their:

• age;
• disability;
• gender reassignment;
• marriage or civil partnership;
• pregnancy or maternity;
• race (including their nationality, colour, or ethnic / national origin);
• religion or belief;
• sex;
• sexual orientation.

The above are referred to as the 9 protected characteristics in the Equality Act 2010. The Act is the most important piece of legislation when it comes to discrimination.

Who is protected from discrimination?

Employees, workers and also even job applicants are protected against unlawful discrimination; meaning they can all potentially bring claims for having suffered discrimination – as long as they can rely on one of the protected characteristics.

Who can be sued for discrimination?

Employers are usually responsible for the actions of their workers, so if one worker is treated unfairly by another worker because of one of the 9 protected characteristics, the employer can be sued for discrimination. In addition however, discrimination claims can also be brought against individuals, so in the above example, the colleague who carried out the unfair conduct could also be sued for discrimination.

Read more here about bringing an Employment Tribunal claim, or here about defending an Employment Tribunal claim.

What does discrimination look like?

There are 4 main different types of discrimination. They are:

• Direct discrimination – where one worker is treated unfairly by another worker because of one of the 9 protected characteristics. For example, where an older worker is moved from their usual reception desk to a back-office role because the employer wants a younger worker on reception. This could be seen as unfair treatment or being treated differently because of age (direct age discrimination).
• Indirect discrimination – where a practice or rule is in place which applies to every worker but places workers of certain protected characteristics under a disadvantage. For example, a rule which says that every worker must work a Saturday shift could place those of the Jewish faith at a disadvantage because Saturday is a day of worship for them. This could therefore amount to indirect religious discrimination. The employer may however have a defence here if they can prove that there is proper justification for their Saturday shift rule. This defence is often referred to as the objective justification defence.
• Harassment – where one worker does something (related to one of the 9 protected characteristics above) which creates an intimidating or humiliating environment for another worker. For example, one worker makes racist comments in an office and those comments have an intimidating effect on another worker present. There is also another form of harassment (referred to as sexual harassment) where the conduct complained of is of a sexual nature.
• Victimisation – where a worker is treated unfairly because they have made or supported a complaint of discrimination. For example, a worker is overlooked for promotion because they’ve recently complained of being harassed or discriminated by a colleague.

What about disability discrimination?

When it comes to disability discrimination law, there is one additional type of discrimination (in addition to the 4 outlined above); a failure to make reasonable adjustments. This is where an employer fails to make changes to help or accommodate a disabled worker. For example, where a disability (or disabilities) place an employee at a disadvantage, the employer is obliged by discrimination law to try and alleviate that disadvantage. An unreasonable failure to do so will amount to discrimination. Of all the protected characteristics and types of discrimination, statistically, disability discrimination has until recently been the most common type of discrimination claim that is seen in the Employment Tribunal.

What is positive discrimination when it comes to disabilities?

The law on disability discrimination is one of the rare examples in UK employment law of positive discrimination being encouraged – i.e. the law puts a positive obligation on an employer to take steps to help those with disabilities (and to favour them over others). That said, it’s important to note that an employer’s positive discrimination obligations will only kick in once they are aware (or should reasonably have been aware) of those disabilities. Therefore, if an employer doesn’t know about an employee’s disability (and it wouldn’t have been reasonable for them to have known about that disability either) the obligation on the employer doesn’t come into play.

What about bullying?

Unlike with discrimination, there is no legal definition of bullying and if a worker claims they’ve been bullied, they don’t automatically have the right to sue their employer for that. However, if the bullying is linked to one of the 9 protected characteristics above, the worker may be able to bring a discrimination claim. For example, if employees are bullied or unfairly treated because of their age or face harassment because of their age, this could amount to age discrimination. In addition, where an employee has suffered bullying, they may want to raise a grievance about that, and if they can show that the employer didn’t deal with the grievance properly, they may also consider resigning and bringing a claim for constructive unfair dismissal.

Can a worker be discriminated against because of someone else’s protected characteristic?

Potentially yes. This is referred to as direct discrimination by association. An example would be where a worker is treated badly because they’ve been seen out with a person who is gay. In this example, even though the worker who’s been treated badly isn’t gay, they can still allege discrimination by association if the unfair treatment they’ve suffered is because of their association to someone who is gay.

Can a worker be discriminated against because someone thinks they are of a certain protected characteristic?

Potentially yes. This is referred to as direct discrimination by perception. An example would be where someone rejects a job application from a white woman who they wrongly think is black, simply because she has an African name. In this example, even though the individual who has suffered unfair treatment isn’t black, they could still allege race discrimination based on the fact that they’ve been perceived to be black (race discrimination by perception).

What can an employer do to reduce the risk of discrimination?

The following will help an employer show that they have taken all steps to avoid discrimination (which can give an employer a defence to certain types of discrimination claims):

• Having policies in place on discrimination, including ones on equality & diversity and anti-harassment & bullying;
• Updating those policies regularly;
• Training staff on those policies and on how to treat others at the workplace fairly – this can also give employees the reassurance that they are protected from discrimination;
• Making it clear to staff how they can complain about any unfair treatment at the workplace – this should educate staff about how they should deal with daily discrimination and how they should act when discrimination occurs linked to one of the protected characteristics;
• Taking disciplinary action in relation to any discrimination which has occurred – this will demonstrate that you are taking the issue of discrimination seriously.

What should you do if you have faced unfair or prejudicial treatment yourself?

If you have suffered unfair treatment or prejudicial treatment in the workplace or during your employment, you should first raise a grievance with your employer. Discrimination occurs in many different ways, but if you feel that you’ve been treated unfairly, the best way of protecting your legal rights is to notify your employer of the alleged discrimination. Whilst some protected characteristics may have become obvious to an employer during the course of the employment, others may be less obvious. For example, whilst an employee’s national origin, race, age or gender identity may be apparent, an employee may have decided to keep their sexual orientation or religion to themselves. However, as part of any grievance, and to be better protected by discrimination law, an employee will need to disclose the protected characteristics that they are alleging discrimination in relation to.

What is equal pay?

Another aspect of discrimination in the workplace within UK employment law is that of equal pay. Equal pay is the concept that individuals should be paid on an equal basis (for equal work) regardless of gender. In effect therefore, an employer cannot discriminate in relation to pay between men and women where the work being carried out is the same work or is work of equal value. An equal pay claim can be brought against an employer in the Employment Tribunal, and in a successful equal pay claim, an Employment Tribunal can make a declaration in favour of the Claimant and also require that the employer pays any arrears of pay to the Claimant.

How much is a discrimination claim worth?

Unlike with other claims such as unfair dismissal, the compensation that can be awarded by an Employment Tribunal in a successful discrimination claim is uncapped. In other words, technically there is no ceiling on the value of a successful discrimination claim. This, in reality, is why so many employers fear discrimination claims (another reason being the adverse publicity involved with being on the receiving end of such a claim). That said, when an Employment Tribunal awards compensation in a successful discrimination claim, they do follow certain guidelines (known as the Vento guidelines) which mean that the level of compensation awarded in successful claims will be based on the seriousness of the discrimination and the severity of the impact on the individual on the receiving end of the unfair treatment.

If you need any advice on discrimination, please contact a member of our employment law team in confidence here or on 02920 829 100 for a free initial call to see how they can help.