The Equality Act 2010 provides six different types of discrimination that are prohibited by law:
- Direct Discrimination: when an individual is treated less favourably than others due to one or more of the protected characteristics.
- Indirect Discrimination: where an organisational policy, applicable to all, places those with protected characteristics at a disadvantage.
- Failure to make reasonable adjustments: where an employer has failed to ensure disabled people can access jobs, education and services as easily as non-disabled people.
- Discrimination arising from disability: where an employee has been treated unfairly and this is connected to a disability. This is only applicable if the person who discriminated against you knew you had a disability or ought to have known and can be deemed lawful if the organisation or employer can show that there is a good reason for the unfair treatment.
- Harassment: unwanted conduct toward an individual relating to a protected characteristic that is intended to offend, humiliate degrade or intimidate.
- Victimisation: when an individual suffers poor treatment due to a perception that they have or will have a protected characteristic.
What are the protected characteristics?
‘Protected characteristics’ is the legal term used to refer to the different types of discrimination that are prohibited by law under the Equality Act 2010. These apply in a broad range of environments and circumstances, including the workplace.
It is against the law to discriminate against or treat someone unfairly by reason of:
- Age It is against the law to discriminate against anyone on the basis of being young or old, being a specific age or belonging to a particular age group (‘over 70’, ‘18 – 21’ etc).
- Disability This covers both physical and mental conditions that you suffer now or have recovered from.
- Gender reassignment You are protected by law from discrimination during all phases of gender transition, including if you are planning to transition, have already started the process or have already transitioned.
- Marriage or civil partnership Is it unlawful to discriminate against individuals for being married or in a civil partnership, and where you are separated but not divorced or the civil partnership has not been dissolved. You must be legally married or in a legal civil partnership to come under this class. You are not covered if you are engaged, widowed or a long term cohabiting couple.
- Pregnancy or maternity Employers are not allowed to discriminate against employees because they are pregnant or on maternity leave. This applies during the ‘protected period’ which starts when the employee is pregnant and ends when maternity leave ends or when they return to work, whichever is sooner.
- Race discrimination It is unlawful to discriminate on the basis of an employee’s skin colour, nationality, ethnic or national origin.
- Religion or belief Protection covers where an employee has certain religious or philosophical beliefs, where they are a member of an organised religion or have no religion.
- Sex It is unlawful to discriminate against an employee on the basis of being a man or a woman. Employees who identify as non-binary should seek legal advice as the law in this area is developing.
- Sexual orientation Employers cannot discriminate against you because of your sexuality.
In reality, complaints can relate to more than one protected characteristic. For each characteristic you complain about, you will need to put forward a separate case with evidence for each. Taking legal advice will help you identify the strongest basis for your case, whether that is in relation to one or a combination of characteristics.
Protection from discrimination may still apply in certain circumstances where the unfair treatment is not on the basis of you having a protected characteristic.
For example, if you are discriminated against because of the employer perceives you have a protected characteristic, or if you have an association with somebody who has a protected characteristic, you may still be able to make a complaint.
If you have supported someone else with a discrimination complaint or have made a complaint previously yourself, any resulting unfair treatment could be deemed victimisation as a result of a protected act under the Equality Act 2010.
What is the difference between direct and indirect discrimination?
When making a complaint you will need to determine whether you have been a victim of direct or indirect discrimination.
Direct discrimination applies where the employee has been discriminated against because of a protected characteristic.
Indirect discrimination is where individuals with a protected characteristic are disadvantaged due to a workplace practice, policy or process that applies to everybody.
Examples of direct discrimination could include refusal to hire, promote or train someone by reason of a protected characteristic. Examples of indirect discrimination could include a policy requiring employees to work on a religious holiday which could be deemed religious discrimination.
In some cases, indirect discrimination can be lawful. The employer must be able to show an ‘objective justification’ for the organisation’s discriminatory process or policy to achieve an aim that brings benefits (not just financial) that outweigh the discriminatory impact. They must also show there is no other route to achieve the aim.
What are ‘reasonable adjustments’?
The Equality Act 2010 places a legal duty on employers to make reasonable adjustments within the workplace so as to avoid discriminating against disabled workers or job applicants. This could include:
- Interview arrangements, eg wheelchair access
- Promotion, transfer & training opportunities
- Ensuring the workplace facilities are suitable for disabled workers eg disabled parking facilities for disabled employees
What is reasonable depends on a number of factors, including the resources available to the organisation making the adjustment. If an organisation already has a number of parking spaces it would be reasonable for it to designate one close to the entrance for the employee.
What should I do if I have been discriminated against in the workplace?
The law provides protection to a broad range of individuals including employees, workers, some self-employed individuals and job applicants.
If you have a complaint about unfair treatment, you should first try to resolve the issue informally. Check your organisation’s policy for the process to follow, which could be to speak to your line manager or HR about the problem in the first instance. Take notes of your actions and of relevant discussions relating to the complaint as you may need to rely on these should the issue escalate.
If you are not satisfied the problem has been addressed, you may need to raise a formal grievance.
If the grievance process has failed to resolve the issue and you have exhausted the internal complaints procedure, you may be able to bring a claim for discrimination.
When can I bring an employment discrimination claim?
A claim for discrimination has to be brought within 3 months less one day of when the discrimination took place.
For example, this could be the date when you were informed you did get a promotion or you did not get the job.
How much compensation can I get for an employment discrimination claim?
If your discrimination claim is successful at tribunal, you should be awarded compensation. There is no limit on the amount of compensation you can be awarded for a discrimination case.
The amount of compensation will be set to cover the financial losses you have incurred as a result of the discrimination. This award is made to put the employee in the position they would have been in had they not been discriminated against, and usually comprises loss of earnings and benefits in kind such as a company car, bonuses, health insurance or a pension.
Compensation may also be awarded for any personal injury and injury to feelings due to the unfair treatment.
Compensation for injury to feelings is broken down into three bands, depending on the nature and severity of the injury proven by the employee; £900 to £8,800 for the least serious cases, £8,800 to £26,300 and £26,300 to £44,000 for the most severe claims.
You will need to provide evidence to support each of the losses you are claiming for, such as a copy of your medical records and expert witness opinion.
The tribunal can also make a discretionary award of aggravated damages if your employer’s conduct has been unreasonable.
Can I complain about unfair treatment when I applied for a job?
Employment discrimination protection extends to employees and to job applicants. Even as a candidate, you should expect to be treated fairly by the organisation, which means employers have to avoid discriminating against applicants throughout the recruitment process, including:
- Wording of job advertisements eg are they specifying a minimum number of years’ experience?
- Interview arrangements eg is the venue accessible if you have a disability and would reasonable adjustments need to be made?
- Interview questions eg were you asked personal questions, for example relating to your family life or health, such as ‘are you planning to have any children?’?
During the interview, the employer can ask you about your ability to carry out the role but they should not ask about any disabilities or medical conditions you may have or the status of your health. If you choose to inform the employer about a disability, this cannot be used as a reason not to give you the job.
In certain circumstances, employers may be permitted to encourage applications from people who have a particular protected characteristic, but applications have to be open to all to avoid discriminating against people who don’t have the protected characteristics.
If you believe you have been discriminated against when applying for a job, take advice to understand your options and whether you can take action against the organisation. To make a complaint, you will need to show you are a viable candidate for the role you applied for, for example, you possess suitable qualifications and relevant experience.
Do you need help with an employment discrimination issue?
DavidsonMorris’ team has extensive experience advising employees in discrimination disputes and claims. We can help you understand your options and guide you through any complaint or claims process. Contact us for advice on workplace discrimination.