We are regularly contacted by employees who have been mistreated at work and who tell us they are being ‘discriminated’ against. Discrimination is the practice of treating a person, or a group of people less fairly than other groups of people. In an employment law context, it will be necessary for the individual to identify a relevant ‘protected characteristic’ if they wish to bring a claim in the Employment Tribunal for discrimination. The Equality Act 2010 identifies the following protected characteristics: –
- Age
- Sex
- Race (including ethnicity and nationality)
- Religion or Belief
- Sexual orientation
- Gender Reassignment
- Marriage or civil partnership
- Pregnancy or maternity
- Disability
Everyone has a protected characteristic, but discrimination only occurs in the situations below.
- Direct discrimination
This is when someone is treated less favourably because of their protected characteristic.
- Indirect discrimination
This where a ‘provision, criterion or practice’ is applied to a group, usually the whole workforce, that appears neutral, but it puts an individual at a particular disadvantage because of their protected characteristic.
- Failure to make reasonable adjustments
This protected characteristic only applies to those with the protected characteristic of disability. There is a positive duty on employers to make ‘reasonable adjustments’ to avoid a disadvantage to a worker. The word reasonable is important and what is reasonable will vary depending upon the individual circumstances of the employee and employer.
- Discrimination arising from disability
Similarly, this also only applies to those with the protected characteristic of disability. This is where a worker is treated less favourably because of something that arises or is in consequence of their disability.
- Harassment
This is where someone is subjected to unwanted conduct that is related to a protected characteristic and the conduct has the purpose or effect of violating someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
Harassment must be connected to the protected characteristic.
- Victimisation
This is where someone is subjected to a detriment because they do a protected act or is believed to have undertaken a protected act. A protected act is in most situations is raising an allegation of discrimination but is defined at clause 27 (2) of the Equality Act 2010
Who is protected?
Employees have protection under the Equality Act 2010; however, the rights also apply to contractors, former employees and prospective employees (such as discrimination which occurs during the recruitment process). Volunteers and Interns are not protected.
What should I do if I believe I am being discriminated against by my employer?
You should keep a detailed record of what your employer is doing. This could include making diary notes, retaining emails or any other documentary evidence and keeping notes of any potential witnesses.
It is also useful to review your employer’s policies and procedures/handbooks and understand how your employer is supposed to handle complaints related to discrimination. This will assist you if you need to raise a grievance. Sometimes employees are concerned about raising grievances or ‘whistleblowing’ therefore in this situation it may be wise to take advice from a solicitor or your trade union before you raise a grievance.
You can also issue a claim in the Employment Tribunal.
How can employers prevent workplace discrimination?
Employers should have clear policies on discrimination which are routinely reviewed. These may be in the form of Anti-harassment and Discrimination, Equal Opportunities and Anti-Bullying. These policies will usually set out the complaints procedure guiding staff on what they should do to raise a complaint.
Staff should be informed that these policies exist, and training should be provided for staff to help prevent discrimination. This is particularly important with regards to sexual harassment as there is a specific duty on employers to take steps to prevent sexual harassment in the workplace (please see our article from last year for further information).
This article is intended as a brief overview and should not be taken as legal advice. If you require assistance with the matters raised in this article, please CONTACT US to see how we can help you.
