Discrimination

Protecting against discrimination

The Equality Act 2010 governs the law around discrimination in the UK. It harmonises previous anti-discrimination legislation and introduced the term ‘protected characteristic’.

The Act makes it illegal for an employer to discriminate against employees in relation to age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Therefore, if you are treated unfairly at work because of any of those things then you need to consider if your rights at work have been breached by your employer. There are various types of discrimination at work and in order to bring a claim forward, you need to show you have been treated in a way that is covered by the act.

Direct discrimination

Direct discrimination will occur when an employee is treated less favourably than other employees because of a protected characteristic. Examples of less favourable treatment include:

• Dismissal
• Demotion
• Not receiving the same access to training
• Not receiving a pay rise
• Not being promoted to a higher position
• Being given terms and conditions that are less favourable

For example, an employer refusing to give a woman a job because she is a woman. This is an example of direct discrimination because the woman has been treated unfairly based on her sex when compared to a man in the same situation.

Indirect discrimination

Indirect discrimination occurs when a workplace practice, decision, or rule applies to everyone but particularly disadvantages people who share a protected characteristic and this cannot be justified by the employer. For example, the requirement to not have more than a certain number of days off sick before being disciplined could be indirectly discriminatory towards disabled employees.

This is because disabled employees may be more likely to have time off sick (depending on what their disability is). Therefore, this could lead to them being more likely to be disciplined. This could be potentially discriminatory.

Disability discrimination

A person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities. This means that to qualify for discrimination protection at work, a health condition must usually be:

• A physical or mental health condition
• Affect the person on a daily basis in relation to normal activities e.g. dressing, bathing, shopping, sitting, writing, and walking
• Be long term – i.e. have lasted for 12 months or be likely to do so (people with HIV, cancer and multiple sclerosis, and people certified as blind or partially sighted are automatically deemed disabled under the Equality Act)

Harassment

There are two types of harassment under the Equality Act. The first type is unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that individual. Examples of harassment include jokes, banter, gestures, offensive text messages or emails, offensive posters, abusive language, and name-calling.

The second type of harassment is sexual harassment which is unwanted conduct of a sexual nature such as flirting, sexual comments, sexual assault, and unwanted conduct because of rejection of or submission to previous harassment.

Victimisation

Victimisation occurs when an employer subjects a person to poor treatment because they have made allegations that they or someone else are being subject to discrimination or have brought a claim against their employer for discrimination.

These provisions are intended to stop employees from being subjected to poor treatment or reprisals from their employer for seeking to enforce their rights in relation to discrimination and to give employees the confidence to bring such complaints.

Failure to make adjustments

The Equality Act requires an employer to make reasonable adjustments where a workplace practice, decision, or rule puts a disabled person at a substantial disadvantage as compared to an employee who doesn’t have that disability. Known as ‘reasonable adjustments’, the employer must take reasonable steps to help the employee get over the disadvantage.

An employer must also make an adjustment where a physical feature puts a disabled employee at a substantial disadvantage in comparison with non-disabled employees or where, but for the provision of an auxiliary aid, the employee would be put to a substantial disadvantage. The employer must take reasonable steps to provide the auxiliary aid.

This can lead to a duty to provide equipment and to alter premises. Whether an adjustment is reasonable depends upon how effective the adjustment would be helping the employee, how feasible it is to make the adjustment, the financial and other costs of the adjustment, the size of the business, availability of assistance with the adjustment, and the extent of the employer’s financial and other resources.

If you are having problems at work with discrimination, then it is important to take early advice. The deadlines in discrimination cases can be very short (three months, minus one day) and therefore it is important to make sure you don’t miss any deadlines.