Discrimination in the Workplace

Discrimination in the workplace arises where one person is treated differently because of a personal characteristic. It is not limited to current employees but can also include those applying or interviewing for a role at the firm (even if they are not successful). 

Discrimination can arise in various workplace situations including: 

• Recruitment 

• Dismissal 

• Pay and benefits 

• Redundancy 

• Promotion 

• Training and career progression 

• Employment terms and conditions 

What characteristics are protected from discrimination? 

The Equality Act 2010 prevents a person from being discriminated against in relation to certain protected characteristics, which are: 

• Age 

• Disability 

• Gender identity or reassignment 

• Marriage or civil partnership 

• Pregnancy and maternity 

• Race 

• Religion or belief 

• Sex 

• Sexual orientation 

Some of these protected characteristics carry added requirements for an employer. The Equality Act imposes a duty on employers to take positive steps to ensure that those with a disability are able to access and progress with their employment. In these cases, the employer is legally obliged to make “reasonable adjustments” to ensure that the employee is not disadvantaged by a workplace requirement or practice.  

What are the types of discrimination? 

There are various different types of discrimination that can occur in the workplace. 

Direct discrimination 

This occurs where an employee is intentionally treated less favourably than other employees because of a protected characteristic.  

The employee does not need to actually possess the protected characteristic, they simply need to be perceived as having it. Direct discrimination cannot be objectively justified except in relation to age.  

Indirect discrimination 

This occurs where a provision, criterion or practice is applied neutrally to a group of employees, but with the result that those with a protected characteristic are disadvantaged compared to those that do not have that characteristic. Those claiming that they have suffered indirect discrimination have to prove that they have been personally disadvantaged by the event. They also have to show how others with the same characteristic have (or could have) been disadvantaged. It is possible for indirect discrimination to be objectively justified by the employer. 

Discrimination by association 

If an employee is treated less favourably because of their association with a person that has a protected characteristic, then they can be the victim of discrimination by association. 

Harassment  

This is unwanted conduct that relates to a person’s protected characteristics. The intention has to be to violate the person’s dignity or to create an intimidating, hostile, degrading or humiliating or offensive environment for the individual.  

An employee can bring a harassment claim even where the conduct is not aimed at them directly. The employee does not need to hold the relevant protected characteristic.  

Victimisation 

This arises where the employee is penalised because of their complaint about discrimination or harassment or supporting another making such a claim.  

What should an employee do if they suffer discrimination? 

Where there has been an incident of discrimination, the employee has three months from the date of the incident to raise this with their employer. 

The employee needs to produce evidence of the unfavourable treatment as compared to other employees in similar circumstances. This is not the case for maternity and disability claims, where it is not necessary to show that another person would be treated more favourably.  

Are there any defences to discrimination? 

There are some situations where an employer can justify discrimination occurring in the workplace. 

Objective justification 

If the employer can show that the treatment is objectively justified, then the act may not be regarded as discrimination. The employer has to show that the actions were a proportionate means of achieving a legitimate aim. There has to be a real business need and it cannot be purely economic. It is necessary to show that the legitimate business need outweighed the discriminatory effect for this defence to be allowed, and the court would look to see if there were other methods that could have been used that were less discriminatory. 

There is a legal requirement to discriminate 

There are certain situations where you are able to make employment decisions based on someone’s characteristics, for example in relation to immigration laws if this prevents a person from being employed in this country, even if they are the most qualified. 

Necessary requirements 

It may be necessary to discriminate due to a need for that particular role of organisation. For example, faith schools may require teachers to be of that faith and this is something that would be permitted.