Discrimination in the workplace is rife but hard to prove. To make matters more complicated, there are also several different categories of discrimination and different individual characteristics that are recognised by the law as giving rise to discrimination.
In this guide, we explain what is meant by discrimination and outline the main types of discrimination and individual characteristics involved in discrimination at work.
We also consider how discrimination makes itself evident in the workplace and give you some pointers to resolving your discrimination issues before they become too entrenched.
- Discrimination compensation in discrimination claims
- Preparing a schedule of loss and how to calculate your discrimination financial claim
- Discrimination relating to age, disability, gender reassignment, marriage and civil partnership, mental health, pregnancy and maternity, religion or belief, sex, sexual orientation, veganism.
What is discrimination at work?
Under the Equality Act (2010) ‘discrimination’ means treating you less favourably because you have a specific characteristic that tends to make you more likely to be the target of negative or hostile behaviour by other individuals or groups at work.
The characteristics that make you more likely to be discriminated against are recognized in the Equality Act which serves to protect everyone against discrimination.
Who can be discriminated against?
Under the Equality Act 2010, people who have one or more of the characteristics mentioned above are often more vulnerable to discrimination than others. These characteristics have a special legal status and are called ‘protected characteristics’.
It is unlawful to discriminate against people on the grounds of these characteristics, which are as follows:
1.Race includes your race, colour, nationality (including citizenship) ethnic or national origins.
2. Sex means either male or female or a group of people such as men or boys, or women or girls, although the majority of sex discrimination cases are brought by women.
3. Age can refer to a particular age or an age range and can refer to young as well as old people, for example, employees of 18-24 years, or over the age of 55.
4. Disability means physical or mental impairment which has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities.
5. Pregnancy and maternity is being pregnant, expecting a baby, or having had a baby recently.
6. Sexual orientation refers to whether a person’s sexual attraction is towards their own sex, the opposite sex, to both sexes, or none.
7. Religion or belief includes religious and philosophical beliefs including lack of belief (such as Atheism). Generally, a belief should affect your life choices or the way you live, for it to be included in the definition.
8. Gender reassignment means a person who is transitioning or has transitioned from one gender to another.
9. Marriage and civil partnership refers to the legal union between a man and woman or between a same-sex couple.
Who carries out discriminatory acts?
Both employers and employees can and sometimes do carry out discriminatory acts at work against other employees.
Employers who carry out discriminatory acts
Employers are legally responsible for any acts of discrimination carried out by their employees during the course of their work.
This is true, regardless of whether or not the employer was aware of or agreed with those acts or intentionally discriminated against anyone themselves.
So if the discrimination against you took place during work, your claim would usually be against your employer, rather than against any individual colleagues.
Having said that, your employer would not be held legally responsible if they could show that they had taken all reasonable steps to prevent their employees from acting in a discriminatory way.
Reasonable steps would include such things as having an equality policy, providing discrimination awareness-raising and training and a mechanism for people easily to make complaints against discrimination.
Employees who carry out acts of discrimination
Individual employees can also be held personally responsible for acts of discrimination. So you may be able to take a colleague to court and make a claim against them for discrimination (see our separate guide on Discrimination compensation).
What kinds of discrimination are there?
The two most common types of discrimination are called Direct discrimination and Indirect discrimination. Harassment and Victimisation also count as discrimination. Each is discussed further below.
This is when you are treated differently or worse than others, because of age, sex, race, sexual orientation (etc – see the nine protected characteristics above)
The reason why you are being treated differently – or less favourably – is important and in order to prove discrimination, you must show that it is because of a protected characteristic.
In reality, this is difficult. Few people who discriminate do it explicitly although occasionally we see an employer who might reveal their hand by saying or doing something which would amount to direct discrimination.
Direct discrimination examples
The following are some practical examples of direct discrimination in the workplace:
1. Direct race discrimination
The arrival of a new CEO. As soon as he starts expresses the wish to employ people of the same national origin as himself, makes comments about others being workshy, and staff of different racial origins start to find they are put on performance improvement plans
2. Direct Sex Discrimination
A woman is interviewed for a new role and is asked if she plans to have children soon. She says she does and does not get the job.
3. Direct Religious Discrimination
Refusing to employ a woman because she wishes to wear a hijab.
This is when an employer treats everyone the same but the effect of the treatment subjects you to a disadvantage because of your protected characteristic.
Indirect discrimination examples
1. Indirect sex discrimination
An employer that has a policy requiring all staff to work full time is likely to place a woman who has primary child care responsibilities at a disadvantage compares to a male colleague.
2. Indirect religious discrimination
An employer who insists that all staff must work on a Sunday may cause a disadvantage to someone whose religious observances requires them to refrain from work on a Sunday.
Employers have a defence if they can show there is an ‘objective justification’ for the requirement. In essence, this means they have a strong and unbiased business case for discriminating in this way and can justify their actions.
Harassment counts as unlawful discrimination under the Equality Act 2010 when there is unwanted conduct related to a relevant protected characteristic.
This unwanted conduct also has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
Harassment can take various forms, both physical and non-physical, including:
1. Physical harassment
Examples of physical harassment include:
- Physical gestures and threats (eg raising an arm showing an intention to hit someone)
- Hostile facial expressions
- Actual physical contact such as hitting, pushing or brushing past someone
- Using physical objects with a view to scaring, upsetting or offending someone (eg toy spiders, rodents, snakes; badges supporting a discriminatory movement)
- Unwelcome touching perceived to be of a sexual nature
2. Non-physical harassment
Examples of non-physical harassment include:
- Written abuse or threats, such as emails or comments on social media
- Spoken abuse, threats, teasing or jokes
- Inventing and spreading untruths about an individual
- Criticising someone’s behaviour or work when criticism is not justified
- Unwanted written or spoken sexual comments or advances
Under the Equality Act 2010 (section 27), victimisation means treating someone badly because they have done a ‘protected act’, or because you believe that a person has done or is going to do a protected act. (Equality and Human Rights Commission)
Doing a ‘protected act’ is when you take one or more of the following actions:
- Make a complaint about discrimination (whether the discrimination is against yourself or a colleague)
- Assisting someone else with their discrimination claim,
- Make an allegation that someone has breached the Equality Act.
So victimisation is essentially retaliation for you taking a stand against discrimination.
Here are some examples of victimisation, listed by the type of action taken that gives rise to victimisation:
1. Making a complaint about discrimination:
Whenever there is no one else within hearing distance, a colleague keeps telling you that the only reason you got your job is that you are black and not because you were the best candidate.
You complain about this blatant race discrimination and subsequently find that your probationary period has been extended and your associated pay rise deferred for reasons which you think are questionable and unsubstantiated.
2. Offering assistance to someone who is being discriminated against
Your friend is openly gay at work and is being treated in a homophobic way by his line manager. You help him with the related grievance he is raising by acting as a witness.
Not long afterwards, you are informed that your role is at risk of redundancy; yet you know that the role is still needed.
3 Making an allegation that someone has breached the Equality Act
There is one physically disabled person in your team at work. Your employer has taken some steps to make ‘reasonable adjustments’ to accommodate her disability, but every day you see your colleague really struggling to cope with her work.
She won’t complain about it but you do make a complaint about it (with her agreement).
After submitting your written allegation to senior management that they have discriminated against your colleague because of her disability, you get your application for team leader turned down, even though you know you are the best candidate.
Top TipsLorna Valcin
Keep a diary
Gather relevant statistics and other evidence
Can you resolve the discrimination issue and stay at work?
In many instances of discrimination, it is possible for you to get the issue resolved and to continue in your place of work.
Informal discrimination resolution
The first thing you should do is to seek an informal discussion with your line manager (assuming that they are not the perpetrators), HR Manager or other designated person (see your staff handbook).
At this stage, they may just hear your case, together with any evidence you have and then the perpetrator’s side.
The perpetrator may not be aware of the offence their discriminatory action has caused and their behaviour might be stopped by non-severe disciplinary action of some kind (eg verbal warning) and/or by awareness-raising and equality training.
Equally, it could be that the perpetrator has done this kind of thing before and will be subject to more severe punishment, even including dismissal.
Formal discrimination resolution – Raising a grievance
If you are not happy with the way your complaint has been dealt with informally, then you should escalate the complaint to the level of a formal grievance. (See our guide on Grievances for further detail.)
If you haven’t already compiled any evidence about the discriminatory act, you will certainly need to gather evidence for the grievance hearing panel. The main purpose of the evidence is to support your claim that the discriminatory acts actually did happen. Otherwise, it’s just your word against theirs and your grievance will be rejected. (See our guide on Evidence gathering.)
Are there time limits for making discrimination compensation claims?
Yes, there are really important time limits for making discrimination compensation claims. We cover this in more detail in our guide on Discrimination compensation.
Suffice it to say here that limits apply officially to employment tribunal claims and unofficially also to settlement agreement compensation claims, as briefly outlined below.
Time limits for employment tribunal compensation claims
Be aware that evidence gathering, informal approaches and particularly formal approaches such as grievances, can and do take time.
If you decide to bring a discrimination claim in an employment tribunal, you only have three months less one day from the date of the discriminatory act (or last in a series of acts) to lodge your intention – via Acas – to make a claim.
See more about this really important limit in our guide on Discrimination compensation.
The good news is that you don’t have to have a minimum period of service with your employer before you can make a claim for discrimination.
Settlement agreement compensation claims
Although the same strict time limits don’t apply to settlement agreement compensation claims as to tribunal claims, you still need to act promptly. That’s because, if you want to negotiate compensation with your employer without going to a tribunal, your bargaining ability will be strongest if there is still time for you to make a tribunal claim. You might not intend to make such a claim at the outset, but your employers don’t know that and if they won’t negotiate, you might be forced to make a tribunal claim.
However, if your employers think they may have a discrimination case to answer, they will be more likely to want to settle with you directly, rather than to risk losing the case at an employment tribunal and having to pay a potentially substantial tribunal award, when they could have negotiated a settlement with you for less money.
We often find that our clients can identify that they’ve been subjected to long-term and often sustained detrimental treatment.
Sometimes they are not sure why but suspect that it may have been because of a protected characteristic.
We can help you identify the discrimination and any other claims that might have, advise you on time limits and also discuss the best strategy. So do get in touch to find out more:
- Discrimination compensation
- Discrimination questionnaire
- Age discrimination
- Disability discrimination
- Maternity discrimination
- Mental health discrimination
- Race discrimination
- Sex discrimination
- Sexual harassment at work
- Tribunal award for discrimination
- Grievances: how to write one
- Grievance: bullying, discrimination, depression
- Letter: disability discrimination
- Without prejudice letter templates
- Tribunal: race discrimination, contract breach & commisssions