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What constitutes discrimination at work?

15 Nov 2021

What is workplace discrimination?

The Equality Act 2010 recognises different “protected characteristics” and makes it unlawful for people to be treated differently or unfairly based on those characteristics. There are several different types of unlawful discrimination which are explained in more detail below.

What are the protected characteristics?

The protected characteristics are:

  • Age
  • Disability
  • Gender re-assignment (which includes being transgender, non-binary or gender fluid)
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race (which includes colour, nationality and ethnic origins)
  • Religious or philosophical belief
  • Sex, and
  • Sexual orientation

What are the different types of discrimination at work?

The Equality Act sets out four main types of discrimination that are unlawful. These are:

  • Direct discrimination – where you have been treated less favourably than someone with a different protected characteristic. For example, you have been dismissed in circumstances where employees of a different race have not been subjected to the same sanction.
  • Indirect discrimination – where your employer does something that applies to everyone, but this puts people of a particular protected characteristic at a disadvantage and your employer cannot justify their actions. For example, an employer requires their employees to speak English at all times whilst at work. This puts people who are not English at a disadvantage and so this could amount to indirect discrimination if the employer cannot justify the requirement.
  • Harassment – this is unwanted behaviour related to a protected characteristic, which is intimidating, hostile, humiliating or offensive. A common example is where racist terms are used in the workplace. Unwanted sexual conduct also falls under the definition of harassment, as does unfavourable treatment that results from rejecting or submitting to unwanted sexual conduct.
  • Victimisation – this is where you have complained about discrimination or have supported someone else in their complaint and have been subjected to a detriment as a result.

What types of workplace disability discrimination are there?

A disabled person is protected from all of the above types of discrimination. In addition, there are two other specific types of disability discrimination claim that can be brought under the Equality Act 2010. They are:

  • Failure to make reasonable adjustments – employers have a duty to make adjustments where a disabled person is disadvantaged at work, either because of a physical feature of the workplace, a lack of suitable equipment or because of the requirements of their employer. The duty is to any steps that are reasonable to remove the disadvantage. Common examples can be providing ergonomic equipment to alleviate joint pain, providing step-free access to a building or allowing an employee to take additional breaks to overcome fatigue or difficulty concentrating.
  • Discrimination arising from disability – this occurs when an employee is treated unfavourably not because they are disabled (as this would be direct discrimination), but because of something that is caused by the disability and where that treatment is not justified. This could cover being given a warning because of sickness absences which are caused by a disability if the employer could not justify giving the warning.

However in both types of claim, it is a defence for the employer to show that they did not know, and could not have been expected to know about the disability.

When does an illness amount to a disability?

An illness will amount to a disability for the purposes of the Equality Act if it has lasted or is likely to last for a year, and it has a significant impact on your ability to carry out normal day-to-day activities. In practice, to decide whether or not you are disabled a Tribunal will want to see medical evidence from your GP and a witness statement that explains how your condition affects your normal day-to-day life.

A small number of conditions are automatically regarded as disabilities. These are HIV infection, multiple sclerosis and cancer.

What forms can discriminatory action take?

Some common examples of discrimination at work are:

  • Refusing to allow employees to work flexibly – this can be indirect sex discrimination towards women;
  • Asking women in job interviews about their intentions to have a family;
  • Asking offensive questions or making offensive comments about an employee’s race or religion;
  • Using racial, ableist, ageist, homophobic or transphobic slurs;
  • Making a woman redundant whilst on maternity leave without offering her any suitable alternative roles;
  • Excluding women on maternity leave from social events;
  • Requiring employees to retire once they reach a certain age, where this is not justified;
  • Requiring transgender employees to use different facilities to those they would prefer to use;
  • Not granting time off for the observance of religious festivals;
  • Ignoring or ostracising an employee because they raised an allegation of discrimination – even if that allegation turned out to be incorrect;
  • Treating an employee differently once it’s found out that they are married or in a civil partnership;
  • Offering additional benefits to employees once they have reached a very long length of service (e.g. 10-20 years) – this can indirectly discriminate against younger employees and be difficult for the employer to justify;

It is not unlawful to discriminate against job applicants where persons of a certain protected characteristic are required for the role. For example, it would not be discriminatory to say that only women are welcome to apply for a job at a women’s refuge.

What do I do if I have been discriminated against at work?

You should try to ensure that you retain any evidence of discriminatory behaviour. If something discriminatory has been said at work, keep a diary of what was said, by whom and when. You should also try to resolve any discrimination issue through raising a grievance at work.

You may be entitled to bring a Tribunal claim in relation to any discriminatory conduct at work. Any claim should normally be brought within three months of the last act complained of.

More information

Richard Nelson LLP has a team of experienced employment lawyers and can advise you on whether you may have a discrimination claim and represent you throughout the Tribunal process.

Contact Richard Nelson LLP if you require any advice about workplace discrimination.

Written by George Miller

George joined Richard Nelson LLP in 2021 as a Chartered Legal Executive, and is part of the firm's employment law team. He supports both employers and employees in a range of cases, including unfair dismissal, settlement agreements, and disciplinary procedures. Read more about George Miller

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