What Counts as Discrimination at Work?

Author:
David Hession
Employment Law Associate Solicitor
Date:
31/07/2019

Under the Equality Act 2010, there are nine "protected characteristics". You cannot be discriminated against during the recruitment process, or at work, if you possess any of these characteristics; which we explain below.

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Types of Discrimination at Work

There are mainly two types of discrimination, direct discrimination and indirect discrimination. Direct discrimination is when you are treated less favourably because of one of the following protected characteristics:

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

Indirect discrimination is when a practice, criterion or policy puts a particular group at a disadvantage because you possess one of these protected characteristics. As an example, your employer may implement a performance-related bonus. Female employees could argue that this indirectly discriminates against them as they are more likely to go on leave through maternity.

If you are treated less favourably because you complain about discrimination at work, or you support someone who is being discriminated against then you may have a victimisation claim. Harassment can also occur where an individual subjects you to unwanted conduct as a result of a protected characteristic (e.g. sexual harassment).

The law in England and Wales protects you against discrimination and victimisation in the workplace. This includes discrimination during the recruitment process and during your employment.

What is Discrimination at Work?

Some of the ways in which discrimination might arise in the workplace include:

Recruitment

Job applicants can be discriminated against during recruitment. This includes the wording of the job advertisement, the interview process and the selection process. It could amount to discrimination if the job advertisement requests males only, or candidates are rejected for being disabled.

Employment Terms and Conditions

The terms and conditions of an employment contract cannot put employees with protected characteristics at an unfair disadvantage. This might happen if the working hours interfere with a person’s religious worship. This can amount to indirect discrimination unless your employer can justify its approach.

Promotion

All suitable candidates should be considered for promotion. No one should be denied the opportunity for progression based on a protected characteristic. It’s discrimination if a female employee is not put forward for promotion because she has children or an employee is considered too young, despite possessing the necessary skills.

Training

The same principle applies to training. All employees should be given the necessary training. For example, a disabled employee should be given the same training as their colleagues. If the organisation cannot accommodate the employee’s needs, reasonable adjustments should be made.

Pay and Benefits

An employee should not be awarded a lower salary than colleagues of similar standing, based on a protected characteristic. An example is when female employees are paid less than their male counterparts. Additionally, occupational benefits should be applied equally, including pensions, company cars, healthcare and other perks.

Retirement and Redundancy

People with a protected characteristic cannot be unfairly selected for retirement or redundancy. For instance, employees of a certain age cannot be forced to retire. Also, employees cannot be picked out for redundancy based on a protected characteristic, be it gender, race, sexual orientation or otherwise.

Dismissal

Just like retirement and redundancy, an employee cannot be dismissed based on a protected characteristic. This might occur if an employee is dismissed after announcing a gender reassignment or pregnancy; for more information, see Pregnancy Rights at Work. Employees should only be dismissed for fair reasons, and even then, the correct processes should be followed.

What Doesn’t Count as Discrimination at Work?

The above examples should give you an idea of what counts as discrimination at work. However, it’s also useful to know what does not count as discrimination at work. Sometimes, a company can behave in a seemingly discriminatory way, yet it is actually permitted. This includes if:

That the Employer’s Conduct is Objectively Justified

Where there is a case of indirect discrimination, a company may be acting within the confines of the law if it can show there is a legitimate business need. In addition, the employer must be able to demonstrate that it has acted proportionately. For example, a restaurant may require its workers to carry out work on a Sunday.

This could be seen as a legitimate need if Sunday is the busiest day of the week. Workers must carry out work in order to meet customer demand. Proportionality could exit if the employer required its workers to work on alternative Sundays rather than every Sunday.

Reasonable Action was Taken

Employers can be liable for the actions of their staff and third parties, such as suppliers and clients. If an employee encounters discrimination from a colleague or third party, an employer could be responsible – unless it can show that reasonable action was taken to protect the employee from discrimination.

Our Employment Solicitors Can Help You

If you believe you have been discriminated against at work, please speak to our Employment Solicitors about what to do next.

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