In the UK, it’s unlawful to treat someone unfairly at work because of any protected characteristics that they may possess. The following guide for employers, line managers and HR personnel outlines the law around discrimination in the workplace, and how this affords both job applicants and workers statutory protection from unfair treatment.
We also examine the limited circumstances in which discrimination can be construed as lawful, and the ways in which employers can reduce the risk of unlawful conduct at work.
What are the protected characteristics?
Under the Equality Act 2010, all employers are under a statutory duty not to directly or indirectly discriminate against anyone who possesses a protected characteristic. These are essentially aspects of a person’s identity that makes them who they are.
The 2010 Act sets out nine different protected characteristics:
- Age: age discrimination is where a person is treated unfairly because of their age, or because they’re part of a particular age group or age range.
- Disability: disability discrimination is where a person is treated unfairly for a reason connected with any physical or mental impairment that’s having a substantial and long-term adverse effect on their ability to do normal day-to-day activities.
- Gender reassignment: discrimination by reason of gender reassignment is where a person is treated unfairly because they’re transgender, including those who want to reassign their sex from their birth sex to their preferred sex, or actually do this by changing physical or other characteristics. Gender reassignment is a personal not a medical process, where an individual doesn’t have to be under medical supervision or undergo medical treatment to be afforded protection as a transgender person.
- Marriage or civil partnership: discrimination by reason of marriage or civil partnership is where someone is treated unfairly because they’re married, provided this is a union recognised as a marriage under UK law, even if they didn’t marry in the UK, or in a registered civil partnership, including same sex partnerships registered outside the UK.
- Pregnancy or maternity: discrimination by reason of pregnancy or maternity is where someone is treated unfairly because either they’re pregnant, have a pregnancy-related illness, or they’ve recently given birth and are on maternity leave.
- Race: race discrimination is where someone is treated unfairly because of their colour, nationality, or ethnic or national origins. People who share these characteristics are part of the same racial group, although someone can be part of several racial groups.
- Religion or belief: discrimination by reason of religion or belief is where someone is treated unfairly because they follow a particular faith or hold a certain belief, where belief encompasses both religious or philosophical beliefs, and includes a lack of belief.
- Sex: sex discrimination is where someone is treated unfairly because they’re either male or female, regardless of any other protected characteristic that they may possess.
- Sexual orientation: discrimination by reason of sexual orientation is where someone is treated unfairly because they’re either gay, lesbian, bisexual or heterosexual.
What are the different types of discrimination?
There are various different types of discrimination that commonly arise in the workplace:
Direct discrimination: direct discrimination in the workplace is where an employer treats an employee less favourably because they possess a protected characteristic. An example of direct discrimination could be where a female member of staff is passed over for promotion, but her less experienced male co-worker is offered the job, or where a pregnant worker or worker on maternity leave is selected for redundancy. Direct discrimination can also include treating someone unfairly because they’re thought to possess a protected characteristic (discrimination by perception), even if they don’t, or because the employee is associated with someone who possesses a protected characteristic (discrimination by association).
Indirect discrimination: indirect discrimination in the workplace is where the application of a provision, criterion or practice inadvertently puts, or would put, those employees who possess a protected characteristic at an unfair disadvantage when compared with others who don’t share that characteristic. It’s essentially where an employer treats someone the same as everyone else, but this still has a negative effect on them. For example, a job advert for a salesperson that requires all applicants to have 10 years’ experience in retail could be discriminating indirectly based on age. This is because the advert excludes young people who may still have the skills and qualifications needed. Equally, a requirement that all employees work certain shift patterns could discriminate against someone taking medication for a mental health disorder which means they’re too tired to work late shifts.
Harassment or victimisation: harassment in the workplace is where someone is subjected to unwanted conduct that’s connected to a protected characteristic that either violates their dignity or creates an offensive working environment, while victimisation is where a person is subjected to a detriment because they’ve complained about discrimination or harassment or supported someone else’s claim at work. For example, if a person is subjected to racist, sexist or homophobic remarks, this could amount to harassment. Equally, if someone is refused a promotion or other opportunities at work because they’ve supported a colleague’s complaint about discriminatory comments or conduct, this could amount to victimisation.
Employers are also under a statutory duty to make reasonable adjustments to minimise any disadvantage suffered by a disabled worker. Any failure to make reasonable adjustments for a disabled worker — such as flexible working arrangements or workplace adaptations — can, in its’ own right, be classed as unlawful discrimination by reason of disability.
The consequences of discrimination
The law protects an employee against unlawful discrimination in the workplace in relation to various key areas of employment, including recruitment, pay and benefits, other terms and conditions, training and promotion, performance management, redundancy and dismissal.
If an individual is treated unfairly in relation to any one of these areas of employment, either directly or indirectly, the employer may find themselves facing a tribunal claim for unlawful discrimination. The right not to be discriminated against in the workplace is a right that arises even prior to employment. Equally, any decision to dismiss an employee by reason of a protected characteristic could be classed as automatically unfair. This means that the employee would not need 2 years’ qualifying service to be eligible to claim unfair dismissal.
It’s also important to bear in mind — especially in the context of potential claims for harassment and victimisation — that an employer can be held accountable not only for its own discriminatory conduct, but can be held vicariously liable for the unlawful conduct of its employees. This is because, under the provisions of the 2010 Act, anything done by another person in the course of their employment must be treated as done by the employer.
Is discrimination in the workplace ever lawful?
In rare cases, an employer may be able to prove an applicant needs a certain protected characteristic to do a particular job. This is known as an ‘occupational requirement’. However, the protected characteristic must be essential for, and relate to, the main tasks of the job, and the employer must be able to show a good business reason for this. For example, an employer may be able to justify an upper age limit on a job that requires high levels of fitness and agility, or they may be able to justify employing only women in a medical centre for Muslim women.
In some cases, indirect discrimination can be considered lawful, but only where the employer can prove that the application of a provision, criterion or practice is a proportionate means of achieving a legitimate aim. This is known as ‘objective justification’, where legitimate aims can include the need to run and provide an efficient service, and the economic and operational requirements of the business in question. A legitimate aim can also include the health and safety of an individual or others at work, for example, banning necklaces in a workplace with heavy machinery might indirectly discriminate against anyone who wears a necklace to show their faith, but there’s a very good health and safety reason for the rule.
Is positive discrimination in the workplace lawful?
It’s unlawful to positively discriminate in the workplace, although employers are allowed to take positive action in certain scenarios. For example, an employer can take positive action to support employees, or prospective employees, from a particular ethnicity or age group, provided they can show the group is at a disadvantage or underrepresented in the workforce.
In these circumstances, provided any positive action will not discriminate against others, the employer can take proportionate steps to reduce or remove any barriers or disadvantages, or provide support and training, to increase the participation of those from a protected group.
How to reduce the risk of discrimination at work
Discrimination in the workplace, even if unintentional, can have serious and costly consequences for a business. Allegations of unlawful conduct may lead to legal proceedings, not to mention a damaged reputation and employer brand. It can also create significant conflict in the workplace or, at the very least, foster a negative working environment in which reduced morale can adversely impact performance and productivity.
It’s therefore important that employers take all reasonable steps to reduce the risk of all types of discrimination in the workplace. This includes direct discrimination, harassment and victimisation, especially as employers can be held to be vicariously liable for the unlawful conduct of other members of staff. It also includes any indirect discrimination arising out of the rules and arrangements implemented by the employer.
There are a number of different ways in which employers can help to ensure that all employees are treated fairly throughout the lifecycle of their employment, including:
- Putting in place a ‘dignity at work’ policy: a written workplace policy will help to set out the stance taken by the employer in relation to discrimination, harassment and victimisation. The policy should explain the different types of discrimination and how these can arise, including detailed examples of each. It should essentially let employees know what’s regarded as acceptable conduct and what’s expected of them at work, and set out the procedure for dealing with any complaints of discriminatory conduct.
- Reviewing all workplace policies and procedures: it’s good practice to ensure that all workplace policies promote inclusion, and that the application of any provision, criterion or practice will not inadvertently put those with protected characteristics at an unfair disadvantage. This should include recruitment policies and the way in which vacancies are advertised.
- Providing equality and diversity training: it’s crucial for those responsible for making hiring, firing and other management decisions to fully understand the different types of discrimination and are trained in these areas of risk. It’s also important for all members of staff to understand the impact and consequences of their own unlawful conduct.
- Implementing adequate grievance and disciplinary procedures: employers must ensure that adequate procedures are in place to deal with any allegations of unfair treatment by reason of protected characteristics and, where appropriate, to discipline those responsible. By dealing with any complaints in a full, fair and prompt manner, this will provide employers with an opportunity to resolve the matter without recourse to legal proceedings. This will also help to restore positive working relationships and protect the employer brand.
DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination. Working closely with our specialists in HR, we can advise on positive steps to improve diversity and equality in your organisation, while minimising the legal risk of discrimination claims. For help and advice, speak to our experts.
Protected characteristics at work FAQs
What are the protected characteristics?
Under the Equality Act 2010, the protected characteristics for which a worker will be afforded protection against discrimination are age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex and sexual orientation.
What does it mean to have a protected characteristic?
Having a protected characteristic means you have a right not to be treated less favourably, or subjected to an unfair disadvantage, by reason of that characteristic, for example, because of your age, race, religion, sex or sexual orientation.
What are examples of protected characteristics?
Examples of protected characteristics include age, disability, gender reassignment, sex, sexual orientation, race, religion or belief. Unlawful discrimination in the workplace can arise where an employer treats an employee less favourably because they possess one of these characteristics.
Last updated: 19 January 2022