As we explore the key legal aspects of workplace equality, diversity and inclusion (EDI), it’s essential to consider practical strategies to reduce the risk of employment tribunal claims and promote a fair, inclusive working environment.
The Equality Act 2010: A Legal Framework for Workplace Equality
The Equality Act 2010 (the Act) was introduced to bring together previous anti-discrimination laws into a single piece of legislation. It also extended protection to include:
- Associative discrimination – where someone is treated unfairly because of their association with a person who has a protected characteristic.
- Perceptive discrimination – where someone is treated unfairly because they are perceived to have a protected characteristic, whether or not that perception is accurate.
The Act applies to:
- Employees
- Workers (including self-employed individuals required to perform work personally)
- Job applicants
- Former employees and workers
The Nine Protected Characteristics
Discrimination under the Act is unlawful when it relates to any of the following protected characteristics:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
In Northern Ireland, there is an additional protected characteristic: political opinion.
The Four Main Types of Discrimination
1. Direct Discrimination
Direct discrimination occurs when someone is treated less favourably than another person because of a protected characteristic. A comparator is typically needed to demonstrate less favourable treatment.
Examples of direct discrimination:
- An older employee is denied training because of assumptions about age.
- A woman is overlooked for promotion due to assumptions about childcare responsibilities.
Associative and perceptive discrimination also fall under this category, though not all protected characteristics are eligible for claims under these specific forms.
2. Indirect Discrimination
Indirect discrimination happens when an employer applies a policy, criterion or practice that appears neutral but puts people with a protected characteristic at a particular disadvantage.
To be unlawful, the policy must:
- Disproportionately disadvantage a group with a protected characteristic
- Be unjustifiable
- Result in a detriment to the affected individual
Examples of indirect discrimination:
- A full-time work requirement for a role, disadvantaging women with childcare responsibilities
- A dress code banning all head coverings, potentially discriminating against religious groups
- Requiring English as a first language where it’s not necessary for the role
- Requiring a driving licence for a role where driving isn’t essential, potentially disadvantaging some disabled applicants
3. Victimisation
Victimisation occurs when someone is treated unfairly because they have carried out a protected act, such as:
- Making a discrimination complaint
- Supporting someone else’s complaint
- Giving evidence in proceedings
Examples of victimisation:
- An employee who raised a discrimination grievance is excluded from projects
- A worker supporting a colleague in a tribunal claim receives unjustified negative reviews
4. Harassment and Sexual Harassment
Harassment is unwanted conduct related to a protected characteristic that violates someone’s dignity or creates an intimidating, hostile, or offensive work environment.
Sexual harassment involves unwanted conduct of a sexual nature and is distinct from harassment related to sex (gender).
Employees may also pursue legal action through the Protection from Harassment Act 1997 or, in serious cases of sexual harassment, through the criminal courts.
Since October 2024, under the Worker Protection (Amendment of Equality Act 2010) Act 2023, employers are legally required to take all reasonable steps to prevent sexual harassment in the workplace.
Examples of harassment:
- Jokes or remarks about a colleague’s age, ethnicity or religion
- Displaying offensive imagery in shared workspaces
Examples of sexual harassment:
- Inappropriate comments about appearance
- Sending explicit messages or images
- Unwelcome touching or physical proximity
- Repeated unwanted romantic advances
Future Developments in Equality, Diversity and Inclusion Law
The Employment Rights Bill, introduced in October 2024 and nearing implementation, proposes significant developments in workplace EDI, including:
- From 2027, menopause action plans will be mandatory for employers with 250+ staff
- Employers with 250+ staff, and all public sector organisations, will be required to publish gender equality action plans
- The current duty to take “all reasonable steps” to prevent sexual harassment will be strengthened to require employers to take all steps
These changes signal a shift towards greater accountability and transparency in equality and inclusion efforts.
Practical Strategies to Reduce Tribunal Risk and Promote EDI
- To manage legal risk and embed EDI into workplace culture, employers should:
- Create robust policies covering anti-discrimination, harassment, and grievance procedures. Ensure terms are clearly defined and processes are transparent.
- Update policies regularly in line with legal changes, and provide mandatory training for all staff. Management training should include unconscious bias and recognising subtle forms of harassment and discrimination.
- Promote fair recruitment and career progression, using structured interviews, diverse hiring panels, and regular reviews of pay, promotion, and appraisal data.
- Collect and analyse EDI data to identify trends, and use information from grievances and exit interviews to spot areas of concern.
- Set measurable EDI goals and communicate progress clearly and regularly.
- Encourage inclusive workplace culture through employee networks, open dialogue, and celebrating diversity initiatives.
- Support underrepresented groups by promoting inclusive leadership and offering visibility and advocacy opportunities.
- Offer flexibility and personalised support including reasonable adjustments, gender transition support, religious observance, mental health provision, and accessible working arrangements.
- Ensure managers are approachable and capable of responding appropriately to issues.
- Take early action on concerns to prevent escalation and ensure all investigations are transparent and impartial.
- Conduct regular audits and reviews of EDI practices and policies.
- Benchmark performance against legal standards and industry best practice.
- Gather employee feedback to inform and adapt EDI strategies.
