Discrimination in The Workplace

Employment Diversity2This article will give an overview of discrimination and how it is defined under the law.

More information on specific types of discrimination can be found in the following articles:

Equality Act 2010

The biggest change the Act has made to any previous legislation has been to that which governs discrimination based on disability, more information on which can be found in our disability discrimination guide. 

Also new is legislation which protects transsexual people from discrimination, even when they are not under medical supervision. Being under medical supervision was previously a requirement for such protection under past legislation. For more information on discrimination, based on gender identity, please refer to Gender Reassignment and Discrimination.

Below is a list of the key concepts within the Equality Act:

Protected characteristics

Discrimination is defined in terms of protected characteristics, and it is people who possess these characteristics that the Equality Act is set out to protect.

Legislation defines nine protected characteristics which are:

  • Age
  • Sex
  • Gender Reassignment
  • Sexual Orientation
  • Marital Status (including civil partnerships)
  • Pregnancy and Maternity
  • Race
  • Religion or Belief
  • Disability
  • Types of Discrimination

The legislation divides discrimination into six different categories, most of which apply to all protected characteristics, and where they do not this will be specified:

Direct discrimination

Direct discrimination occurs when an employer treats one employee less (or more) favourably than another because of some protected characteristic (e.g. age). For example offering one employee a promotion over another, based solely on their age, not on any relevant ability.

Direct discrimination applies to all protected characteristics.

Indirect discrimination

An employee is the victim of indirect discrimination if a provision, criteria or practice (PCP) applying to everyone disadvantages them due to their being part of a certain group defined by a protected characteristic, or has a disproportionate impact on those within such a group.

Such a rule is discriminatory unless the employer can justify it as a proportionate means of achieving some legitimate aim.

An example of this would be a change to shift patterns which strongly inconveniences women with care-giving responsibilities, or disabled employees due to problems with timing and transport. Unless the change can be justified in terms of the company's business aims, then those inconvenienced are indeed the victims of indirect discrimination.

Indirect discrimination applies to all protected characteristics except for pregnancy/maternity.

Associative discrimination

Introduced as a form of direct discrimination, this occurs when an employee is disadvantaged or treated unfairly due to their association with an individual or a group who has a protected characteristic, even if they themselves do not have this characteristic.

Associative discrimination applies to:

  • sex,
  • gender reassignment,
  • sexual orientation,
  • age,
  • race,
  • religion or belief, and
  • disability.

Perceptive discrimination

An employee is the victim of perceptive discrimination when they are treated unfairly or less favourably because the employer perceives them as having a certain protected characteristic, even if they may not.

This was also introduced as another form of direct discrimination and applies to:

  • sex,
  • gender reassignment,
  • sexual orientation,
  • age,
  • race,
  • religion or belief, and
  • disability

Harassment

As well as being responsible for and having a duty to not harass any employees, the employer is also responsible for any harassment from a third party (such as a customer or a co-worker), so long as it has occurred more than once, and the employer was aware of this.

While officially, harassment applies to all protected characteristics other than marriage/civil partnerships and pregnancy/maternity, the employer should act as though it applies to these as well, due to overlap with characteristics such as sexual orientation.

For further detailed information have a look at our Harassment and Bullying guide. 

Victimisation

Victimisation is when an employee is treated unfairly or less favourably because either they have, (or is thought by the employer to have), raised or supported a complaint or grievance under the Equality Act 2010. This may also occur post-employment, for example when trying to get a reference from the employer in question.

Employee discrimination 

An employee who feels discriminated against may first bring it to your attention to discuss it. But if this course of action yields no positive results then they may take the claim to an Employment Tribunal.

The employment tribunal has the power to recommend a general course of action for an employer to take. This would be with a view to reduce and ideally eliminate all instances of discrimination of the relevant kind, applying to all employees, not just the claimant.

Pay secrecy and gender pay reporting

Any employee who suspects any difference in pay based on some protected characteristic has the legal right to request relevant information from you in order to settle the matter. While businesses are not currently obliged to publish equal pay reports giving evidence of equal pay, bodies such as the Advisory, Conciliation and Arbitration Service (ACAS) have issued guidance for employers, advising voluntary equality reporting.

Importantly, legislation does state that if an employer loses an equal pay claim at an employment tribunal, then the tribunal may instruct them to publish an equality report unless:

  • they have carried out an audit in the last three years,
  • the organisation's pay scheme is sufficiently transparent, or
  • there is some other clearly legitimate reason why an audit is not appropriate (this if of course decided primarily at the discretion of the tribunal).

Positive action

Employers have always been permitted, and indeed encouraged, to take positive action to remove barriers that prevented certain people or groups from being employed by, or progressing within, their organisation. The Equality Act 2010 adds to this by allowing an employer to recruit a candidate from some under-represented minority over one who is not, when both are equally qualified. Note that this is not a requirement of any sort - employers are not obliged to recruit with this in mind, they are merely permitted to do so.

The Act also contains provisions applying to public sector workers, who act under a single equality duty, requiring them to lead by example, and where possible to take positive action to promote equality within their workplaces.

Occupational requirements

An employer may be exempt from certain regulations governing recruitment and selection when including a certain protected characteristic as a requirement for a certain job if, given the context and nature of the work:

  • they can prove the protected characteristic to be a genuine occupational requirement, or
  • they can prove it to be a proportionate means of achieving a legitimate aim.

Action points for employers

Recruitment

Pre-employment medical questionnaires are not permissible under the Equality Act, and it is important to avoid any inappropriate pre-employment medical questions of any sort. It is, however, permissible to ask certain medical questions either for genuine reasons relating to the work, or for the purpose of monitoring equality with regard to disability.

As mentioned in this article, pay secrecy clauses cannot be enforced under the Equality Act and should not feature on any contract of employment presented to a new employee.

Policy

As a general rule, consider how any current policies and procedures may be construed as discriminatory, particularly in terms of associative discrimination claims, and where relevant, update and amend them in line with the provisions of the Equality Act.

Consider the circumstances in which employees may encounter harassment from others and (where possible/appropriate) adapt or change any policies or procedures which readily allow harassment to occur.

Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) has published non-statutory guidance relating to the Equality Act and statutory codes of practice on employment and equal pay. For further information visit the EHRC website.

Content on Access Solicitor is not legal advice, and is made available subject to our terms of use. If you need more details on your rights or legal advice try using the Access Solicitor search to find the best lawyer for you.



Find a local lawyer


Request a Callback X

Hi ,

Thanks for contacting Access Solicitor. We'll get back to your enquiry as soon as possible, and during normal business hours this should be within the next 30 minutes. We look forward to helping you find the legal advice you need.

Best,
Access Solicitor Customer Care