AA Legal Documents
Law guide

Discrimination in the workplace

Contents

Introduction

Discrimination means treating some people differently from others. It isn't always unlawful – and in the workplace it is common as employees get different benefits and are paid different wages depending on their status and skills. However, some kinds of discrimination are unlawful. Anti-discrimination law in the employment area protects you if you are a worker, an employee, a former employee or an applicant for a job. It also protects you if you are not an employee as such, but are a contract worker, partner or office-holder (such as a director).

What is unlawful discrimination?

Unlawful discrimination happens when an employer treats you less favourably than other employees on the basis of one or more of the following 'protected characteristics':

  • Sex
  • Marital status (if you are married), civil partnership status (if you have entered into one)
  • Gender reassignment
  • Pregnancy and maternity – which includes illness as a result of pregnancy, and the right to statutory maternity leave
  • Race – which includes ethnic origin, national origin, colour and nationality
  • Religion or belief – which includes religious beliefs and philosophical beliefs
  • Sexual orientation – which includes your orientation towards people of the same sex, people of the opposite sex, or people both of the opposite and same sex as you
  • Age
  • Disability – which is any physical or mental impairment that has a long term and substantial effect on your ability to perform your day-to-day activities

If your employer treats you less favourably on the basis of any of these protected characteristics, you may be able to take action. If your employer treats you unfairly for any other reason, this is not unlawful discrimination, but you may still be able to do something about it (please see our article on 'grievances'). It is not only full-time employees who are protected against discrimination. Part-time and fixed-term workers are also protected by anti-discrimination legislation.

Forms of discrimination

The Equality Act 2010 protects employees with any of the protected characteristics listed above from the following forms of discrimination:

Direct discrimination

There are three different forms of direct discrimination. Direct discrimination occurs if an employer treats you less favourably than a 'comparator', because:

  • You have one or more of the protected characteristics. This is direct discrimination.
  • The employer believes (rightly or wrongly) that you have a protected characteristic. This is known as direct perceptive discrimination.
  • You are associated with someone who has a protected characteristic. This is known as direct associative discrimination.

A 'comparator' is defined as another worker in similar circumstances, but who does not share the protected characteristic with you, or, if direct associative discrimination applies, is not associated with the same people as you.

For example, you are being discriminated against if, because of your gender, you are treated less favourably than another employee of the opposite gender, whose circumstances are similar to yours.

Direct perceptive and direct associative discrimination do not apply to pregnancy and maternity, or to marital status.

Sometimes, what looks like direct discrimination might not be unlawful if the discrimination is related to a protected characteristic that is crucial to enable the employee to do the job successfully.

Your employer could be liable for direct discrimination even if there was no intention to discriminate against you. Employers can only defend claims for direct discrimination on the grounds that no discrimination took place at all, except in claims for direct age discrimination, which can be defended on the grounds that the employer's actions were justified (see below).

Indirect discrimination

Indirect discrimination is where an employer's formal or informal workplace policies, practices or criteria put people with a particular protected characteristic at a disadvantage, compared to those who do not share that particular protected characteristic. In addition, an employee within the disadvantaged group must actually suffer that particular disadvantage. It does not matter whether or not this has been done intentionally.

For example, saying that applicants for a job must be clean shaven puts members of some religious groups at a disadvantage.

Your employer can defend a claim of indirect discrimination by 'justifying' it. This means that they must show that the use of the unlawful working practice, provision or criteria is a proportionate means to achieve a legitimate aim.

For example, in the above scenario, the condition that applicants must be clean shaven might be 'a proportionate means to achieve a legitimate aim' if the job involved handling food and it could be shown that having a beard or moustache was a genuine hygiene risk. Your employer will also need to show that this has been applied consistently in its recruitment practice.

Indirect discrimination does not apply to discrimination on the grounds of pregnancy and maternity.

Harassment

Harassment in the workplace is unwanted conduct (including of a sexual nature) towards you by an employer or another worker, because of your actual or perceived protected characteristic, or association with someone who has a protected characteristic. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

This is the case, for example, if someone uses sexist language towards you and you find such language humiliating, or if you work in an open-plan office and sexist language is used in general which you find degrading.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

Harassment applies to all the protected characteristics, except pregnancy and maternity, and marriage and civil partnerships.

When deciding whether unwanted conduct has had a harassing effect, the circumstances of the case will be considered, along with the victim's perception of the conduct and whether that perception is reasonable. You will not be protected if you are over-sensitive and unreasonably take offence to an innocent comment.

An employer cannot defend claims of harassment on the grounds that the actions were reasonable or warranted, or that they did not authorise it. They will be liable for any harassment suffered in the course of employment (which includes during a recruitment process) unless it has taken reasonable, practicable steps to prevent it.

If the harassment is not based on one of the protected characteristics listed above, it will not be harassment in terms of the anti-discrimination laws, but it might still be unlawful as all employers have an obligation to ensure their employees can carry out their duties without harassment and disruption by fellow workers. The employer could in certain circumstances be held liable for the actions of harassment of its employees.

The Protection from Harassment Act 1997 could, in exceptional cases, also protect you against harassment where the unwanted conduct is:

  • 'oppressive and unacceptable', and;
  • could sustain criminal liability (this applies to England and Wales only).

Such harassment must, however, result from a course of action (i.e. at least 2 incidences) which causes you distress. In this instance, you may also be able to make your employer vicariously liable for the oppressive and unacceptable actions of any of its employees towards you.

Under this Act you have 6 years (3 years in Scotland) after the incident of harassment in which to bring your claim in a county court, High Court or (in Scotland) the sheriff court or the Court of Session. Under the anti-discrimination laws you have 3 months to lodge your claim with an Employment Tribunal.

Bullying

You might be subjected to bullying at work. Often an employer will have separate policies covering the steps you should take in the event that you are subjected to bullying. Bullying is similar to harassment except that it normally happens in the presence of other colleagues, although it can also happen in writing, by fax or email, or over the phone. The employee suffering the bullying is often someone in a less senior position than the bully. You would not bring a claim for bullying as such, but would bring a claim for harassment. If, however, you are forced to resign as a result of the bullying, you might have a constructive dismissal claim against your employer.

See also our article: 'Bullying in the workplace'.

Victimisation

Victimisation is where you are being treated less favourably by your employer or a co-worker because:

  • You have exercised your legal rights to not be discriminated against
  • You have exercised your rights under certain equal pay and pensions legislation
  • You have given evidence or information in connection with proceedings relating to a protected characteristic, brought against your employer or a co-worker by another person
  • You have done anything in relation to your employer or a co-worker under, or by reference to, the discrimination laws, or equal pay or pensions legislation.
  • You have alleged that your employer or a co-worker has contravened any of the discrimination laws, or the equal pay or pensions legislation.
  • Your employer believes that you have done or may do any of these things.

There are separate laws which protect you against suffering a detriment because you are involved with what is called 'protected acts'. Some of these protected acts relate to:

  • Trade union activities
  • Health and safety issues
  • Exercise of maternity related rights, such as time off for antenatal care
  • Exercise of family related rights, such as parental and paternity leave
  • Taking time off to act as companion to a worker who is facing a disciplinary procedure or grievance procedure
  • Taking time off work for jury service
  • Whistleblowing (i.e. to inform the relevant authorities of an underhand or illegal practice)
  • Claiming rights under the Working Time Regulations
  • Claiming rights under the national minimum wage rules