Discrimination

If you are being treated unfairly at work because of who you are, whether this treatment is direct, or it is a rule or policy for everyone which affects you differently, this is discrimination in the workplace.

What is considered discrimination in the workplace?

The law protects you against discrimination at work including:
  • Recruitment
  • Employment terms and conditions
  • Pay and benefits
  • Promotion opportunities
  • Transfer opportunities
  • Redundancy
  • Dismissal
  • If they are influenced negatively by any of the following protected characteristics:


All of these are known as protected characteristics and discrimination against any of these in England and Wales is usually classed as a criminal offence, covered under under the Equality Act 2010.

What are some examples of discrimination in the workplace?


The four types of discrimination are:
For example:
  • You recently got married, and plan to have children. You are not put forward for training which would progress your career, instead, the training is given to younger single people with less experience.
  • You face a formal disciplinary for a mistake, someone without your protected characteristic made the same mistake and had only an informal discussion.
  • Your request to change your work schedule, to take part in a cultural event, is refused. Another employee's similar request to change their work schedule to take part in a sports match, was granted.

Employers must also not ask questions about any protected characteristic when hiring new staff, unless it is a rare circumstance. For example they cannot ask if a disability will make the role more difficult to carry out. They should instead ask if there are any reasonable adjustments the prospective employee would need to conduct the interview or any part of the hiring process.

Discrimination by association:

You are associated with someone with a protected characteristic (For example, your child is disabled or your partner is of an ethnic minority. When your colleagues find out they stop inviting you to social events).

Discrimination by perception:

Someone thinks you have a protected characteristic. (For example, they bully you because they think you have had a gender reassignment, even if you haven’t).

You will need to show that:
  • You were treated less favourably than someone without your protected characteristic.
    If there is someone who was treated differently in the same situation they are an ‘actual comparator’.
    If there is not someone who was treated differently in the same situation, you will have to use a ‘hypothetical comparator’. Use a real example of someone who was treated differently in a similar situation, to argue that they would also have been treated differently in the same situation.
    • Your protected characteristic was the direct cause of the discrimination in the workplace, or one of them. Your employer might argue, at the employment tribunal, that they dismissed you because you were not hitting your performance targets. If you can prove that you would not have been dismissed based on your performance targets alone (for example, someone in the same situation without your protected characteristic was given a formal warning to improve their performance instead) then this would still be discrimination.

    Further reading:
For example, company policy dictates that staff cannot wear their hair in cornrows. This is racial discrimination against the groups who would be more likely to wear their hair this way.

Companies are allowed to have rules that discriminate if they can prove that they are justified.

For example, you must pass a series of physical tests to become a firefighter. This will discriminate against older people whose strength and stamina has dropped with age. However, this is justifiable, as the safety of the fire victims and the rest of the team depends on the strength and stamina of the firefighter.

If the rule is not objectively justifiable, you can take action against your employer. You will need to show:
  • The rule, policy or practise exists, (even if it is not written anywhere, or if you have signed an agreement to it).
  • It puts you at a disadvantage compared to others without your characteristic.
  • It puts or would put others with your characteristic at the same disadvantage too.
  • It does, or could, apply to people with and without your protected characteristic. (For example: the rule applies to everyone in your office, they are all women. However, if the company employed men, it would apply to both men and women).
  • Evidence of how it affects you and any others with your protected characteristic.

Further reading:
If someone’s behaviour offends you, makes you feel uncomfortable, distressed or intimidated it may be harassment.
For example:
  • Abusive comments
  • Derogatory jokes
  • Insulting gestures
  • Mocking facial expressions
  • Offensive comments on social media

Further reading:
It is also illegal to discriminate you because you helped someone else challenge discrimination in the workplace, because they believe you challenged discrimination when you didn’t or because they believe that you will challenge discrimination in the near future.

You are not protected if you made false accusations, gave false information, or reported discrimination in bad faith. For example, if you lied or exaggerated to get more compensation money and were treated unfairly as a result, this would not be classed as victimisation.

If you made an honest complaint about discrimination, and later found out it was not discrimination, you would still be protected from victimisation.

What an employer can do to prevent discrimination

You can help prevent discrimination in the workplace by steps including:

  • Having an up-to-date equality policy
  • Providing regular anti-discrimination training to staff
  • Making it clear how staff can complain if discrimination happens
  • Regular one-to-one catch-ups between employees and their line managers, to help build positive working relationships

The key message that an employer needs to pass down to their employees is that they ensure the workplace treats employees fairly and they have an easy way to report any discrimination.

Is your employer responsible for the discrimination at work?
If the discriminatory behaviour came from a colleague, your employer may be responsible too, whether the behaviour happened at work or outside of work, at a work social event, business trip or over social media that's linked to work. This is called ‘vicarious responsibility’.

It is usually better to take action against your employer for discrimination in the workplace, if they are responsible, as this is more likely to result in them making a positive change and paying you compensation. You can take action against your employer and the individual who has discriminated against you.

A tribunal will decide whether the employer is responsible based on whether they have taken all reasonable steps to prevent discrimination in the workplace, harassment and victimisation by their staff.

For example:
An employer who has provided regular compulsory training on equality, diversity and discrimination, and who responds immediately and appropriately to accusations of discrimination, would be less likely to be found responsible by the employment tribunal.

If someone has told someone else to discriminate (For example, a company director tells human resources not to employ any women over the age of 30) they are responsible for ‘instructing, causing or inducing discrimination’.

If someone helps another person to discriminate, they are responsible for ‘aiding discrimination’.

Who is protected by discrimination law?
Most workers are protected from discrimination in the workplace
Protected
Not protected
  • An employee
  • An apprentice
  • Working under an agreement that you will personally do work, and that they will pay you for it.
  • A former employee
  • A casual or zero hour worker
  • A Freelancer
  • Some self employed people (your contract says you’re self employed and could send a substitute, but that doesn’t reflect your actual work situation).
  • You’re a volunteer
  • You’re working illegally
  • You don’t have the right to work in the UK
  • You have an arrangement with your employer to avoid paying income tax and national insurance contributions
  • If you’re genuinely self employed (you have a contract to do work but you can send a substitute, you are in control and run your own business to make a profit).

If you are employed by one business but you work for another, (for example, agency work) you can complain to either or both businesses about discrimination at work, depending on who is responsible.

If you are a:

Frequently Asked Questions
You are also protected from unfair treatment based on trade union membership or being a fixed term or part time worker.
First try to resolve the problem with an informal discussion with your employer.

If this is unsuccessful raise a formal grievance. It is best to raise a formal grievance if you have time, if you cannot show that you tried to resolve the issue with your employer, it may reduce the amount of compensation you could get if you win.

Are you facing discrimination at work?
No-one should be subjected to discrimination at work. Our discrimination solicitors are here to support you in getting the justice you deserve. Get in contact with us for a free case review and see how we can help.

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