Unlawful discrimination at work can have serious implications for an organisation, even if this is unintentional. Workplace 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 and damaging the employer brand.
As an employer, it is important to understand your obligations to prevent unlawful discrimination at work to reduce the risk of grievances and 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:
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).
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.
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.
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.
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.
Employers’ obligations to prevent discrimination
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 at work 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.
Examples of lawful discrimination
Below we set out some illustrative examples of how lawful discrimination can arise in the workplace, covering the primary ways in which this can be justified:
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
Below we set out some illustrative examples of how unlawful discrimination can arise in the workplace, covering each of the different forms of discrimination:
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 protect against claims for 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.
By seeking expert legal advice from an employment law specialist, specifically tailored to the nature and size of your organisation, employers can explore ways to help prevent unlawful discrimination in the workplace.
DavidsonMorris’ employment law specialists support employers to comply with their legal obligations to prevent unlawful discrimination at work. We provide guidance on issues such as dealing with request for reasonable adjustments, adopting polices and rules that lawfully discriminate. Working closely with our team of HR specialists, we provide a holistic approach to managing legal risk and supporting positive workforce relations. For specialist advice, speak to us.
Last updated: 20 May 2022