Discrimination At Work - An Employer's Guide

An Employer has the duty to ensure that their employees and workers are not subject to any discrimination at work. This responsibility extends to job applicants and the area of recruitment.

This guidance explains the current law in relation to discrimination and offers some practical tips to help employers to protect their business against potential discrimination claims.

Discrimination at Work

It is important to note that equality legislation applies to workers as well as employees. Where this guidance makes reference to employees this should also be taken to include workers.

Protected Characteristics

There are a number of characteristics which are protected under the Equality Act 2010. As an employer, you must ensure that you do not discriminate against any person because they have one of these characteristics. 

The Equality Act 2010 prohibits discrimination on the grounds of:

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

Types of Discrimination At Work

There are different types of discrimination at work and unlawful conduct that apply to the protected characteristics.

These are:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimisation
  • Instructing, causing, inducing and helping discrimination

What Is Direct Discrimination At Work?

Direct discrimination at work takes place when an employee is treated less favourably compared to how others may be treated. The employer’s conscious or subconscious reason for the treatment will be taken into account when determining whether an employee received less favourable treatment because of a protected characteristic.

Direct discrimination at work may occur if an employee is treated less favourably by an employer because of his/her disability, for example.

It is not possible for direct discrimination to be objectively justified except in relation to age discrimination.

What Is Indirect Discrimination At Work?

Indirect discrimination can occur when you, as an employer, implement a decision or policy which has the effect of placing a particular group of individuals who share a protected characteristic at a disadvantage. Unless you can show that the provision or practice is objectively justified, you may be found to have indirectly discriminated against an employee.

For example, you may introduce a new requirement for employees to work night shifts. Unless you can justify this requirement, you may be found to have indirectly discriminated against women who may have childcare responsibilities.

If you have an issue with an employee, but are reluctant to approach them because you feel your actions may be misconstrued as discrimination, then be sure to contact a legal employment specialist. They will be able to instruct you on the best way to proceed.

Obligation To Make Reasonable Adjustments

When dealing with employees who have a disability covered under the Equality Act, employers may be under an obligation to put reasonable adjustments in place. This obligation arises when an employer’s policy, criterion or practice places the employee at a disadvantage.

An example of this may include offering the employee an alternative role within your business. Other adjustment could include making physical alterations to the workplace or amending the employee’s duties. 

What Is Harassment?

A person harasses another person if he or she engages in unwanted conduct related to a protected characteristic which has the purpose or effect of:

  • Violating that persons dignity, or
  • Creating an intimidating, hostile, degrading, humiliating or offensive environment.

In deciding whether or not an employee has been the subject of harassment, the following factors will be taken into account:

  • The employee’s perception
  • The other circumstances of the case
  • Whether it is reasonable for the employer’s conduct to have the effect of violating the employee’s dignity
  • Whether the employer created an intimidating, hostile, degrading, humiliating or offensive environment.

Employers must be conscious of the fact that a one-off incident can amount to harassment and the employee is not required to prove that there was a chain of events amounting to harassment.

The protected characteristics which are relevant to harassment are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.</p

What Is Victimisation?

An employer must not victimise an employee for carrying out protected acts, or because the employer believes that the employee has done, or might do such an act.

Protected acts are defined under the legislation as issuing a claim against your employer under the Equality Act or giving evidence in relation to court proceedings brought under the Equality Act. It could also cover a situation where an employee makes an allegation that the employer (or an employee belonging to the employer) has breached the Equality Act.

Victimisation also covers the area of recruitment and is not just limited to circumstances where the employee actually works for the employer. To give an example, this could include prospective employer who refuses to employ someone who has given evidence against a previous employer in a discrimination case.

Instructing, Causing, Inducing Or Knowingly Helping Unlawful Acts

It is unlawful for an employer to cause, induce or assist, directly or indirectly, another person to discriminate against, harass or victimise another person, or to attempt to do so if the discrimination has occurred against the employee’s protected characteristic(s) under the Equality Act 2010. 

It is against the law for an employer to cause or assist one person in discriminating against another. This also applies to indirect discrimination, where the harassment was never the employer’s intention.

Even if an employee is not actually discriminated against, if an employer causes, induces or aids someone to harass or victimise an employee, this would be regarded as unlawful. The employee would have to show that he/she suffered a detriment or disadvantage as a result of the discrimination.

The Equality Act provides examples of the areas in which it would be unlawful to discriminate against another person. These include education, employment, housing, services and associations and clubs.

If an employee’s discrimination falls under this heading, the employee can bring an action against you as the employer and also directly against the person who has discriminated against him/her.

What Are The Potential Risks?

Employers who do discriminate against their employees run the risk of employment tribunal claims being issued against them. Employees who are successful in bringing discrimination claims can recover injury to feelings awards as well as loss of earnings.

It is worth noting that loss of earnings compensation is not capped in cases of discrimination. This differs from unfair dismissal claims where there is a compensatory cap.

How Can An Employer Reduce The Risk Of Discrimination At Work?

There are a number of practical steps that an employer can take to reduce the risk they face. Firstly, you should consider having some policies and procedures in place in relation to discrimination, equality and diversity. Employers can assist this by ensuring that their managers receive regular training.

Employers are also encouraged to engage with their employees as much as possible. This means that if an employee feels that they are being discriminated against, the employer can identify this as an early stage and take steps to resolve the issue.

Even at the early stages, if an employee feels discriminated against it is vital the employer contact a solicitor immediately before the situation worsens or grounds for a discrimination claim begins to develop.

What To Do If An Employee Has Submitted A Discrimination Claim

Once the employee receives the Early Conciliation Certificate, he/she will be able to submit a discrimination claim to the Employment Tribunal.

The employee will normally have 3 months less one day from the date when the discrimination took place to submit the claim to the Employment Tribunal. However, this is subject to the ACAS early conciliation process which has the effect of extending the limitation the conciliation period.
Employer’s Response Form

The employee will submit the claim using form ET1, a copy of which will be served on you as the employer. If you are served with an ET1, you should defend, or respond to the claim using form ET3 within 28 days of receiving the ET1.

What Is The Tribunal Process?

Once the Tribunal receives the response form, the tribunal will usually fix a hearing date and also issue directions which you must comply with. The Tribunal will set a date for both parties to produce and serve on each other a list of documents, for the Claimant to provide a Schedule of loss and for the parties to exchange witness evidence and so on.

If you are faced with a discrimination claim which has been submitted to the employment tribunal, we recommend that you seek expert employment advice from our specialist employment lawyers as the tribunal process can be stressful and complex, and the decision held at the tribunal can have an impact on the future of your business.

How Can Simpson Millar Assist You?

Our team of employment lawyers have considerable experience in advising employers on potential discrimination issues. We also have considerable experience in defending claims of discrimination at work if matters do get as far as the tribunal stage.

Our employment lawyers offer advice that suits the needs of your business. This is designed to support your business whilst ensuring that you do not incur any unnecessary cost.

Call one of our employment solicitors today on our freephone number, or message us using out online digital enquiry form.

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David Hession | Associate, Employment Law | Simpson Millar LLP

David Hession
Associate, Employment Law

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