Discrimination at Work

Discrimination at work claims. Understanding your position.

Facing discrimination at work can be both distressing and overwhelming. If you’re being treated unfairly due to a protected characteristic, you may be able to reply on your rights under the Equality Act 2010.

Our experienced employment law team will guide you through your options, from raising a workplace grievance to pursuing an Employment Tribunal claim.

What is The Equality Act?

The Equality Act makes it unlawful for an employer to discriminate against you because of a ‘protected characteristic’.

The Act recognises 8 categories of protected characteristics. These are:

• Race
• Sex
• Disability
• Religion or belief
• Sexual orientation
• Pregnancy and maternity
• Gender re-assignment
• Marriage or civil partnership
• Age

Types of discrimination

There are various types of discrimination and other unlawful conduct set out in the Equality Act that apply to most (and in some cases all) of the protected characteristics:

• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation
• Instructing, causing, inducing and helping discrimination

In cases where the protected characteristic is ‘Disability’ then claims for discrimination can also arise for:

• Failure on the part of the employer to make reasonable adjustments required to avoid outing the disabled person at a substantial disadvantage; and
• Discrimination arising from disability – put simply being subject to any detriment or unfairness by reason of the disability

Direct discrimination at work claims

The key points to note about direct discrimination in employment under the Equality Act 2010 are:

• An employee claiming direct discrimination should show that they have been treated less favourably than a real or hypothetical comparator whose circumstances (other than the existence of the protected characteristic) are not materially different to their own. The exception to this is pregnancy or maternity discrimination where formal comparators are not required
• The less favourable treatment must be because of a protected characteristic. If it was for some other reason than the protected characteristics it may be unfair, but it will not amount to unlawful direct discrimination
• The discrimination need not be because of the victim’s protected characteristic, except in marriage and civil partnership cases. Therefore, less favourable treatment because of an employee’s association with someone who has a protected characteristic is covered. For example, an employee without a disability could bring a direct disability discrimination claim where they have been treated less favourably because they have a disabled child
• An employee who is wrongly perceived to have a protected characteristic (other than marriage or civil partnership) will be protected against any less favourable treatment they receive for that reason. For example, an employee of Asian origin might have a direct religious discrimination claim where they have been treated less favourably because of the employer’s mistaken belief that they are Muslim

Indirect discrimination

Indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic.

Where such an action actually disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified.

The classic example is an employer requiring an employee to work full-time. This requirement could disadvantage women as a group, since women tend to bear a greater more childcare responsibilities than men and are more likely to want (or need) to work part time.

Unless the employer can objectively justify the need for a full-time worker to do the job, the requirement could be indirectly discriminatory against a woman with childcare responsibilities.

Harassment

Harassment is defined under the Equality Act as occurring if ‘X’ engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:

• Violating ‘Y’s’ dignity, or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for ‘Y’.

In deciding whether conduct shall be regarded as having the required effect, the following must be taken into account:

• ‘Y’s’ perception
• The other circumstances of the case
• Whether it is reasonable for the conduct to have that effect

Victimisation

The Equality Act‘s victimisation provisions protect employees who do (or might do) protected acts such as bringing discrimination claims, complaining about harassment, or becoming involved in another employee’s discrimination complaint.

Victimisation is usually alleged to have been committed by an employer that is already the subject of a discrimination complaint by a current or former employee.

Our employment lawyers will advise you on the options available to you to address the situation you are in. In doing so we will take into account your objectives, ‘the potential value of any claims’ and whether your employment is continuing or has already come to an end.

Possible courses of action might include:

• raising a grievance and/or appeal about your treatment
• issuing an employment tribunal claim; and/or
• attempting to negotiate a settlement from your employer (often as part of an agreed exit from the business)

In some circumstances, a discrimination claim can be brought whilst you are still in the organisation’s employ (although this is quite unusual). Whether your employment is continuing or not however, it is important to seek advice promptly as the time limits which apply to commence discrimination claims in the employment tribunal are short and run from the date that the act of discrimination complained of takes place.

Pursuing a claim in the employment tribunal in respect of discrimination can be technically complex and may feel overwhelming. We can support you in assessing your situation and taking steps to achieve a resolution.