The word ‘discrimination’ is often used on a day to day basis to describe being treated unfairly for a particular reason; but unlawful discrimination happens when less favourable or unfair treatment relates to specific characteristics, known legally as ‘protected characteristics’. The UK have nine protected characteristics, which are set out in the Equality Act 2010.
There is no minimum length of service required for workers to be able to bring a claim for unlawful discrimination. For employers, this means that a claim for discrimination can be made in respect of a job advert, throughout employment, up to job references for ex-employees, and beyond.
In this HR article, we introduce the protected characteristics and the four main types of discrimination to help you as an employer to understand how to be better able to consider how to prevent discrimination from occurring in the first place. We will also take a brief look at when it is possible for discrimination to be lawful.
Protected characteristics and liability
The UK have 9 protected characteristics, set out in the Equality Act 2010. These are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
Employers and employees can both be liable for acts of discrimination which happen in connection with work. In short, this means that a claim for discrimination can be brought against the employer (as an organisation), but that claims can also be brought personally against individuals.
Sometimes employers can be liable for the acts of their employees, even though the employer did not set out to discriminate against anyone themselves. When this happens, it is known as vicarious liability. Vicarious liability may be avoided if the employer can show they took all reasonable steps to try to prevent discrimination from occurring in the first place.
Claims for discrimination are technically uncapped in the amount a judge can award, due to the possibility of claiming for ‘injury to feelings’. This type of award is almost always made when a successful claim is brought regarding discrimination. Although the amount is uncapped, it is usually determined with reference to ‘Vento’ bandings. There is a lower, middle and upper band which guide how much should be awarded depending on the level of seriousness.
The 4 types of Discrimination
There are 4 main types of discrimination under the Equality Act:
- Direct discrimination
- Indirect discrimination
1) Direct discrimination
There are three different types of direct discrimination.
Direct discrimination occurs when a person is treated less favourably because of:
- A protected characteristic they possess. This is ordinary direct discrimination. It is the only type of direct discrimination which may be lawful, but only if it is ‘objectively justifiable’.
- A protected characteristic possessed by someone who they are associated with (such as a member of their family or a colleague). This is direct discrimination by association.
- A protected characteristic they are thought to possess, regardless of whether the perception is correct or not. This is direct discrimination by perception.
Although there is normally a deliberate act or exclusion, direct discrimination does not have to be intentional. This means that even if discrimination occurred unintentionally, a claim can still succeed.
2) Indirect discrimination
Indirect discrimination is usually less obvious than direct discrimination and is normally unintended.
Generally speaking, it occurs when a rule or plan of some sort is put into place which applies to everyone; and is not in itself discriminatory but it could put those with a certain protected characteristic at a disadvantage.
In law, it is where a ‘provision, criterion or practice’ (PCP) involves all these four things:
- The ‘PCP’ is applied equally to a group of people, only some of whom share the protected characteristic
- It has (or will have) the effect of putting those who share the protected characteristic at a particular disadvantage when compared to others who do not have the characteristic
- It puts, or would put, the person at that disadvantage
- The employer is unable to objectively justify it.
The Equality Act does not define what a ‘PCP‘ is. Acas say ‘the term is most likely to include an employer’s policies, procedures, requirements, rules and arrangements, even if informal, and whether written down or not.‘
Although all four elements must apply for a claim to be successful, it would be the responsibility of the employee (or ‘claimant’) to demonstrate point 2, and to demonstrate that point 3 applies to themselves personally.
Harassment is ‘unwanted conduct’ related to a protected characteristic. It must have the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Bullying, nicknames, gossip, intrusive or inappropriate questions and comments can be harassment. Excluding someone (not inviting them to meetings or events) may also qualify. To say the behaviour was not meant to cause offence or was ‘banter’, is not a defence. With harassment, how the victim sees the conduct is more important than how the harasser sees it. Someone who witnesses this type of conduct can claim harassment if it has had a negative impact on their dignity at work, even if they do not share the characteristic as the colleague who was harassed.
Victimisation occurs when an employee suffers a ‘detriment’ because they have done (or because it is suspected that they have done or may do) one of the following things in good faith:
- Make an allegation of discrimination
- Support a complaint of discrimination
- Give evidence relating to a complaint about discrimination
- Raise a grievance concerning equality or discrimination
- Do anything else for the purposes of (or in connection with) the Equality Act, such as bringing an employment tribunal claim of discrimination
A ‘detriment’ can include a loss, disadvantage, damage or harm. For example, being labelled a ‘troublemaker’, being left out and ignored, being denied training or promotion, or being made redundant.
When can discrimination be lawful? In limited circumstances, ordinary direct discrimination and indirect discrimination may be lawful if the employer can objectively justify it (the law calls this ‘a proportionate means of achieving a legitimate aim’).
The employer must show that the less favourable treatment or PCP was appropriate and necessary (this must be objective and usually involves a business need). What is ‘proportionate’ will vary from case to case and can also depend on the size and resources of the business. For example, a large employer with many staff may find it easier to approve flexible working requests, which may come mostly from women with childcare responsibilities, than a small firm may be able to if they only have a few staff.
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Due to popular demand this article has been republished; it was first posted on 19 June 2019.
Further HR Guidance
- Watch the webinar recording on The 4 Types of Discrimination
- Watch the webinar recording on the Acas Guidance on Age Discrimination
- Read the article about Age Discrimination: Ensuring Fairness and Inclusivity
- Read the article about The Menopause and Age Discrimination
- Read the article about Minimising the Risk of Discrimination in Recruitment.