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What’s considered workplace discrimination in law?

Jul 26, 2022 | Uncategorised

In 2010, the Labour government under Gordon Brown introduced the Equality Act. This was an extensive piece of legislation that sought to simplify anti-discrimination law. It did this by combining and updating all existing anti-discrimination legislation.

The Equality Act defines the different types of discrimination.

These are known as “protected characteristics”. They are:

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

It’s against the law to discriminate against or treat less favourably anyone because of a “protected characteristic”.

The four types of discrimination

There are four types of discrimination, all of which are illegal in the workplace. This means that a victim of discrimination can take action in the civil courts.

The first of these is direct discrimination. This is when an employee is treated less favourably than others because of their protected characteristic. Citizens Advice gives the example of an employer disciplining an employee for taking time off to care for a disabled child – all the while allowing a non-disabled employee to go on leave without consequences.

A defining feature of direct discrimination is that you’re treated both differently and worse because of a protected characteristic. It can be because of who you are or, as in the above example, someone you know or are related to.

The second type of discrimination is indirect discrimination. This is when rules or arrangements – known as “provision, criterion or practice” (PCP) – are implemented that ostensibly apply to all employees, but which in practice put someone with a protected characteristic at a disadvantage.

Acas (the Advisory, Conciliation and Arbitration Service) gives the example of a business recruiting for a head of sales. The job is advertised internally, and all the potential candidates are men. This action discriminates indirectly against suitable female candidates from outside the company.

The law protects people with protected characteristics from being treated differently and unfavourably, directly or indirectly. This could include:

  • Unfair dismissal or redundancy.
  • Double standards regarding pay, benefits, holiday or sick leave.
  • Limiting opportunities for training and promotion.
  • Acting in a discriminatory way during the recruitment process.

Another form of discrimination is harassment, also referred to as bullying. This can range from an individual being persistently and unjustifiably criticised to physical violence – essentially, any behaviour that’s unwanted and violates a person’s dignity.

If the employee is being harassed because of a protected characteristic – subject to ageist or racist remarks, for example – then it’s covered by the Equality Act. If it’s unrelated to a protected characteristic then it comes under other pieces of legislation.

The fourth and final form of discrimination in the workplace is victimisation. This is when a person is treated unfairly for raising a complaint about workplace discrimination, or for helping another person to do so. If you’re victimised in this way, you’re able to add it to your claim of workplace discrimination.

Finally, you’re protected from unfair treatment because of trade union membership, or because you’re a part-time worker.

Are there any exceptions?

There are occasional exemptions on religious grounds. Some organisations are set up along discriminatory lines, and won’t function if legislated against. Examples of this provided by the government include a Catholic school having an exclusively Catholic intake or a health centre for Muslim women employing only female staff.

Aside from these exceptions, the law is comprehensive and protects anyone with a protected characteristic from discrimination.

Disability

As we mentioned above, the Equality Act makes it unlawful for employers to discriminate against anyone with a disability. People with disabilities have the same rights as other workers.

Moreover, employers have a legal duty to make what’s known as “reasonable adjustments” to help disabled employees and job applicants. This duty arises if an employee or candidate is put at a substantial disadvantage because of their disability – in other words, if a non-disabled person’s experience of the same situation is significantly more manageable.

Examples of reasonable adjustments include providing resources in Braille or making sure that the workspace and its facilities are accessible to everyone regardless of disability.

What’s the process if you’re being discriminated against at work?

The first step is to make sure that your situation is defined as discrimination under the law. As we’ve mentioned, it has to be that you’re unfairly treated because of a protected characteristic. Citizens Advice offers a free resource to check if your problem at work is discrimination.

It’s recommended that you gather evidence of discrimination as a matter of urgency. This could include emails or written notes, along with dates and times.

Employees are encouraged to try to solve the matter informally as the first port of call. This could be in talking or writing. This is is especially advisable if you want to continue working for your employer.

If this fails, other options are available. These include:

  • Raising a grievance. This is an escalation from an informal chat or email to a formal complaint against your employer.
  • Settling. This is when you negotiate with your employer to reach a mutually acceptable agreement.
  • Mediation. This is when a trained and neutral third party acts as a mediator between you and your employer to find a solution.
  • If the problem persists after the above actions have been taken, there’s the option of taking legal action at an employment tribunal. If this happens, you may be eligible for legal aid, and may also be able to get free advice from Civil Legal Advice.

Before making a complaint, it’s best to consult an advisor. This could be through Acas, Citizens Advice, or your trade union. Having a trained expert listen to your complaint and give expert advice can help to strengthen your case.

Our team includes friendly workplace discrimination lawyers who have years of experience in employment law. Need help or advice? Get in touch today to book a free consultation.

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