Discrimination & Equality
While employers are required to ensure equality in the workplace, claims for discrimination are on the rise.
We can advise on all aspects of equality at work.
Discrimination and equality
Discrimination at work can have serious implications for a business, both practically and legally speaking, even if this is unintentional. Unlawful discrimination claims typically result in high awards of damages against employers.
Equally, discriminatory conduct in the workplace can easily lead to conflict, tainting working relationships and fostering a negative working environment, not to mention causing damage to the employer brand.
Fundamentally, it is unlawful to discriminate against individuals at work by reason of sex, sexual orientation and gender reassignment, age, disability, race, religion or belief, pregnancy or maternity, marriage or civil partnership.
The imperative for equality and diversity in the workplace is mirroring changes in both the law and in the UK workforce demographic, for example, employees are retiring later and more women are active in the labour market. UK employers have to keep pace.
Beyond legal compliance, improving workplace equality brings wider business benefits. Where employees feel valued and supported within the working environment, it helps to attract and retain employees, improve morale, competitiveness, reputation and productivity. Good working practices also reduce the risk of complaints, disputes, disciplinary action and employment tribunal claims.
What is the law on unlawful discrimination at work?
Under the Equality Act 2010, all workers and job applicants are afforded protection against discrimination, harassment and victimisation in relation to a number of protected characteristics. Under the 2010 Act, there are four different types of discrimination:
- Direct discrimination: where someone at work is treated less favourably than others, either because they possess a protected characteristic; because they are thought to possess that characteristic, regardless of whether or not this perception is correct (discrimination by perception); or because they associate with someone, such as a friend, relative or co-worker possessing a particular protected characteristic (discrimination by association).
- Indirect discrimination: where a provision, criterion or practice puts, or would put, other workers or job applicants with a particular characteristic at a disproportionate disadvantage when compared to others who do not share that same characteristic. It is where an employer treats someone the same as everyone else, but this still has a negative effect.
- Harassment: where someone at work is subjected to unwanted conduct from a co-worker or manager that has the purpose or effect of violating that individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive working environment for them. This can be because a person possesses a protected characteristic, or because they are thought to possess that characteristic or associate with someone who does.
- Victimisation: when a person at work suffers a detriment, either because they have made a complaint about discrimination; because they have supported someone or given evidence in relation to a complaint; or because they have lodged an internal grievance or tribunal claim. A person will also be protected from victimisation if they suffer a detriment because they are suspected of doing, or it is believed that they may do, any of the above.
Protected characteristics under the Equality Act 2010
Under the 2010 Act, there are nine protected characteristics, including:
- Age: age discrimination at work is where someone is treated unfairly because they are part of a particular age group or age range, both young and old.
- Disability: disability discrimination at work is where someone is treated unfairly for a reason connected with any physical and/or mental impairment that is having a substantial and long-term adverse effect on their ability to do normal day-to-day activities.
- Gender reassignment: discrimination at work by reason of gender reassignment is where someone is treated unfairly because they are someone whose gender identity is different from the gender assigned to them when they were born, although this person need not have had any treatment or surgery to change from their birth sex to their preferred gender.
- Marriage and civil partnership: discrimination at work in connection with marriage and civil partnership is where someone is treated unfairly because they are married or in a registered civil partnership, provided this is a union recognised under UK law.
- Pregnancy and maternity: discrimination at work in connection with pregnancy and maternity is where someone is treated unfairly either because they are pregnant, they have a pregnancy-related illness, or they have recently given birth and are on maternity leave.
- Race: race discrimination at work is where someone is treated unfairly because of their colour, nationality, or ethnic and national origins. People sharing these characteristics will form part of the same racial group, although someone can be part of several groups.
- Religion or belief: discrimination at work in connection with a person’s religion or belief is where someone is treated unfairly because of the particular faith that they follow or beliefs that they hold, including religious or philosophical beliefs, or even any lack of belief.
- Sex: sex discrimination at work is where someone is treated unfairly because they are either male or female, regardless of any other protected characteristic that they may possess.
- Sexual orientation: discrimination at work in connection with sexual orientation is where someone is treated unfairly because they are either gay, lesbian, bisexual or heterosexual.
By law, all employers are under a statutory duty not to directly or indirectly discriminate against a worker or job applicant by reason of any one of the protected characteristics, either by treating them less favourably or by putting them at a disadvantage. They are also under a duty not to harass or victimise someone for a reason connected to one of these characteristics.
The protection from unfair treatment at work is automatic. This essentially means that a worker is protected from unlawful discrimination, harassment and victimisation from day one of employment, with no qualifying service requirement. Equally, a job applicant is also afforded protection from unlawful discrimination if they have been treated unfairly during any part of the recruitment process. This is because it is potentially unlawful to discriminate against someone from the point at which a job role is advertised, right through to the last day of employment, and even post-termination when it comes to the provision of references.
The duty not to discriminate, harass or victimise a person throughout the lifecycle of employment extends to various key areas, including recruitment, training, promotion and transfer opportunities, pay and benefits, other employment terms and conditions, performance management, retirement, redundancy and dismissal.
Is discrimination ever lawful?
There are limited circumstances in which different treatment in connection with a protected characteristic can be lawful at work, for example, where the application of a policy or procedure can be objectively justified as a proportionate means of achieving a legitimate aim. However, objective justification will only provide a defence in limited circumstances, where legitimate aims can include the economic and operational requirements of the business or organisation, the need to run and provide an efficient service, or the health and safety of staff.
In most cases, lawful discrimination at work will relate to indirect discrimination, although direct discrimination in relation to age, and arising from a disability, can also occasionally be objectively justifiable. However, harassment or victimisation can never be justified.
Other exceptions where different treatment because of a protected characteristic is allowed include strict occupational requirements, such as age or gender requirements, provided the protected characteristic is essential for the way in which the business or organisation is run.
In the context of treating a worker or job applicant more favourably because they possess a protected characteristic, it is unlawful to positively discriminate in the workplace. Instead, employers can take positive action where there is evidence that those from, for example, a particular ethnicity or age group, are potentially at a disadvantage or under-represented in the workforce, or have other specific needs connected to a protected characteristic. Provided any positive action will not discriminate against others at work, proportionate steps can be taken by the employer to reduce or remove any barriers or disadvantages, or to provide training and support, to increase the participation of those from a protected group.
Workplace discrimination examples
Examples of lawful discrimination at work could include:
- Lawful indirect discrimination: for example, banning loose jewellery in a workplace with heavy machinery can indirectly discriminate against anyone wearing a necklace to show their faith, but this can be objectively justified for health and safety reasons.
- Lawful direct discrimination: for example, an advertisement containing an upper age limit on a job that requires high levels of fitness and agility can directly discriminate against older workers, but this can be objectively justified as fitness and agility levels are essential for the successful candidate to be able to effectively perform the job role in question.
- Lawful discrimination in the context of occupational requirements: for example, employing only females in a health centre for Muslim women can discriminate against male applicants, but this can be objectively justified as essential to the way in which the organisation is run.
Examples of unlawful discrimination at work could include:
- Unlawful direct discrimination: for example, where a female worker is passed over for promotion, where her less experienced male co-worker is offered the position, could be direct sex discrimination, while selecting a worker on maternity leave for redundancy over her male counterpart could be direct discrimination because of pregnancy and maternity.
- Unlawful direct discrimination by perception: for example, rejecting a job application from a white applicant mistakenly thought to be Muslim because they have an Asian-sounding name could be direct perceptive discrimination because of religion and belief.
- Unlawful direct discrimination by association: for example, denying the primary carer of a disabled child a transfer could be direct associative discrimination by reason of disability.
- Unlawful indirect discrimination: for example, an advert stating that any applicant must have at least 10 years’ retail experience could indirectly discriminate by reason of age, where the experience requirement excludes young people who may still have the skills and qualifications needed to adequately perform the job role.
- Harassment: for example, where someone subjects a co-worker to unwanted jokes and banter about being vegan, and where the employer fails to take reasonable steps to prevent this, could be harassment by reason of the victim’s philosophical beliefs. In the context of harassment, where the employer fails to take all reasonable steps to prevent this type of behaviour, the employer will become vicariously liable for this unlawful conduct.
- Victimisation: for example, where a worker is refused a pay rise by their line manager, after lodging an internal grievance about the manager’s inappropriate use of transphobic language, could be victimisation by reason of gender reassignment.
How to prevent unlawful discrimination
Employers must take proactive steps to help minimise the incidence of discrimination at work and protect against claims for unlawful discrimination. Fortunately, there are various steps that employers can take to help avoid the risk of legal proceedings, including:
- Putting in place a Dignity at Work policy: by having a workplace policy that specifically deals with discrimination, harassment and victimisation at work, this will provide guidance and instruction for the workforce to follow, including the implications for both the business and those responsible for any discriminatory conduct at work.
- Reviewing all workplace policies and practices: by recognising the key areas where discrimination can arise, employers can ensure that any workplace policies and practices promote inclusion, and do not directly or indirectly discriminate against workers or job applicants, putting those with protected characteristics at an unfair disadvantage.
- Having adequate grievance and disciplinary procedures: employers must ensure that adequate procedures are in place to address any complaints of unfair treatment at work. These procedures can be set out or signposted within the Dignity at Work policy, where staff should be made aware of how to proceed and who to approach within the business.
- Providing equality and diversity training: it is crucial that those responsible for making hiring, firing and other management decisions understand the different types of discrimination at work and are trained in these areas of risk. Equally, it is important for all staff to understand the impact and consequences of their own unlawful conduct.
Discrimination and equality guidance for employers
Equality in the workplace drives fairness in opportunity that benefits both employees and employers.
We work with employers to help improve equality of job opportunities and treatment through fair and flexible HR strategies, procedures and policies.
This means ensuring fair treatment across the employee lifecycle, from job applicants during the initial recruitment stage through to existing employees, and taking positive steps to prevent against all forms of workplace discrimination, including direct and indirect discrimination, associative discrimination, harassment and victimisation.
We can help to clarify and articulate what equality means for your organisation and its workforce, which may result in identifying additional support or reasonable adjustment requirements.
Importantly, where a complaint does arise, it may also necessitate a review of policies, disciplinary procedures relating to discrimination to manage any future or further legal risk exposure.
We can help
DavidonsMorris’ team of employment solicitors and HR consultants offer support to employers with all aspects of workplace discrimination and equality.
Where there is a complaint or allegation of discrimination or inequality, we can offer support to help you manage the process fairly and in accordance with the relevant guidelines.
If tribunal proceedings are issued, we can defend and represent you through the litigation process.
We can also help to promote equality and prevent discrimination by developing and implementing measures to reduce and avoid equality and discrimination issues as well as the processes for handling issues and complaints that may arise.
Our specialists can help to:
- Improve understanding and awareness of what discrimination is within the organisation
- Promote best practice in equality and good employment practices
- Protect your organisation from employment claims
- Defend and represent your organisation against tribunal claims
This includes development of an equality and diversity policy defining what is acceptable and expected of individual employees and their roles in preventing discrimination and promoting equality.
We can also assist with implementation support, training for management and the wider workforce and with devising a diversity strategy that sets out guidelines and expectations for the organisation to guide behaviour and actions within the workplace.
We also have specific experience in advising employers on the exemption provisions under the Equality Act which allow employers in certain, limited circumstances to lawfully treat employees or job applicants less favourably.
Contact us for specialist advice.