Discrimination in the Workplace

Discrimination is when you are being treated differently to others because of one of the ‘protected characteristics’. There are, however, occasions when some forms of discrimination maybe allowed, i.e employing only a woman to work at a women’s refuge.

The law protects you against discrimination at work, this includes:

• Dismissal

• Pay and conditions

• Promotion and training

• Employment terms and conditions

• Recruitment and redundancy

If you are being treated differently from other people the pages below will explain who is protected against discrimination in the workplace^[1] and what to do if you are.

When are you protected from discrimination?

The Equality Act 2010^[1] provides protection from discrimination if you are being treated unfairly because of one or more of the nine protected characteristics. We all have some of these characteristics – for example, sex and age.

What are the ‘Protected Characteristics?

The protected characteristics^[3] that are protected by the Equality Act 2010 are:

•  Age

• Disability

• Gender reassignment

• Marriage and civil partnership

• Pregnancy and maternity

• Race

• Religion or belief

• Sex

• Sexual orientation.

What is discrimination?

The Equality Act 2010 aims to create a 'level playing field' so that people are employed, paid, trained and promoted only because of their skills, abilities and how they do their job.

Discrimination^[4] happens when an employer treats one employee less favourably than others. It could mean a female employee being paid less than a male colleague for doing the same job, or a minority ethnic employee being refused the training opportunities offered to white colleagues. It can also happen when work colleagues or managers are treating someone differently and less favourably to others, being given the worsts jobs all the time or office banter going too far day after day and no one is taking any action.

What is discrimination by association and perception?

As a result of the Equality Act 2010, there are occasions that you don't have to have a protected characteristic to be directly discriminated against for it. There are two forms of discrimination that deal with this: discrimination by association and discrimination by perception.

Discrimination by Association

Associative discrimination^[5] comes about when someone is treated unfavourably on the basis of another person's protected characteristic.

The Equality Act protects employees if there are people in their life, i.e. family members or friends, who have one or more of the protected characteristics and you are treated unfairly because of that, this is called discrimination by association.

For example, a female employee gives birth to a disabled child. On returning to work after maternity leave, applies for a promotion and is turned down and a less qualified colleague (also a mother, but whose child is not disabled) is given the job because the employer thinks that the employee with the disabled child will need more time off and be less reliable.

Discrimination by association doesn't apply to all protected characteristics. Marriage and civil partnership, and pregnancy and maternity are not covered by the legislation.

Nor does it apply to instances of indirect discrimination by association - it has to be direct. However, there are developments in the European Court of Justice, which suggest that this is an area that could change.

Discrimination by Perception

The Equality Act protects employees when they are treated unfavourably because others believe they have a protected characteristic, even though in reality they don't have it, it is perceptive discrimination.^[5]

A possible example of this is an employee who is rejected for promotion to a supermarket buying team that sources wines, because they have an Arabic name. The employer has assumed that they are a Muslim and won't want to deal with alcohol or an employer rejects a job application from a white woman whom they wrongly thinks is black because the applicant has an African-sounding name.

This could be considered discrimination by perception, whether or not the employee is a Muslim or whether or not the woman is black.

As with associative discrimination, perceptive discrimination does not apply to marriage and civil partnership, nor pregnancy and maternity, and it must be direct discrimination.

What happens if you complain about discrimination, are you protected?

The Equality Act protects employees, if you are treated badly and unfairly because you have made a complaint about discrimination or stood up for discrimination rights, this could be for yourself of in support of someone else.

What should employers have in place regarding discrimination?

Employees have a legal responsibility to ensure that they have policies and procedures in place to prevent discrimination in the following areas:

• Recruitment and selection

• Pay and other terms and conditions of employment

• Training and development

• Promotion opportunities

• Discipline and grievances

• Countering bullying and harassment

• Dismissal.

Why are you being treated differently?

Not all-unfair treatment is unlawful discrimination and is protected by the Equality Act. It is only unlawful discrimination if you are being treated differently because of one of the protected characteristics stated above.

It also doesn’t matter if the person treating you differently to others didn’t mean to discriminate against you or even if they didn’t know they were discriminating. If someone is treating you less favourably because of a protected characteristic, its discrimination.

What is meant by less favourable treatment?

Less favourable treatment means, you are been treated differently to someone else who doesn’t have the same protected characteristic as you and as a result you are in a worse position because of the treatment.

Who have you been treated less favourably than?

To show direct discrimination, you will need to compare your treatment with the treatment of someone else who does not have the same protected characteristics as you. The Equality Act calls this person a comparator.

What types of discrimination can happen at work?

Unlawful discrimination can take a number of different forms: this can be direct, indirect, harassment and victimisation.

What is Direct discrimination?

Direct discrimination^[6] happens when an employer treats an employee less favourably than someone else because of one of the above reasons.

For example, it would be direct discrimination if a driving job was only open to male applicants or the promotional training courses are always given in preference to the white employees.

There are limited circumstances in which an employer might be able to make a case for a genuine occupational requirement for the job. For example, a Roman Catholic school may be able to restrict applications for a scripture teacher to baptised Catholics only.

Direct discrimination on the basis of age, for instance, may occur in one of three ways.

Someone may be treated on less favourable terms due to:

• Their actual age (direct discrimination)

• Their perceived age (direct discrimination by perception)

• The age of a person with whom they associate (direct discrimination by association).

Direct discrimination on the basis of a person’s actual age is the only kind of direct discrimination that may have a lawful purpose – that is, it may be objectively justified as what the law considers “a proportionate means of achieving a legitimate aim.”

In order to be deemed lawful, the discrimination must be proportionate, appropriate and necessary. For example, economic considerations, such as the needs of a business, may be a legitimate aim.

What is Indirect discrimination?

Indirect discrimination^[7] is when a Provision, criteria or practice disadvantages one group of people more than another. For example, saying that applicants for a job must be clean shaven puts members of some religious groups at a disadvantage or an absence management policy states that you must not have any time off on sick leave or you will be disciplined, this could disadvantage someone with a disability.

Indirect discrimination is unlawful, whether or not it is done on purpose. It is only allowed if it is necessary for the way the business works, and there is no other way of achieving it. For example, the condition that applicants must be clean-shaven might be justified if the job involved handling food and it could be shown that having a beard or moustache was a genuine hygiene risk

What is Harassment?

You have the right not to be harassed or made fun of at work or in a work-related setting (i.e. an office party). Harassment^[8] means any undesirable conduct that has the intention or effect of violating a person’s dignity or creating an intimidating, hostile, degrading or offensive environment. For example, allowing displays or distribution of sexually explicit material or giving someone a potentially offensive nickname.

What is Victimisation?

Victimisation^[9] means treating somebody less favourably than others because they tried to make, or have made a complaint about discrimination or supported someone who has made a complaint of discrimination. For example, it could be preventing you from going on training courses, taking unfair disciplinary action against you, or excluding you from company social events.

Being treated unfairly for other reasons

If you are treated unfairly but it is not for one of the reasons listed above, it may be that you are being bullied. Bullying should never be acceptable in the workplace.

If you think you have experienced discrimination because of mental health problems find out more about mental health issues in the workplace by following the link below.