Workplace discrimination is very serious and ensuring a fair environment is essential for a business to operate successfully. Issues of discrimination can be damaging for a business since it can result in legal action but also undermine the productivity and morale or the workforce. Those employees feeling they are being discriminated against can feel very daunted on how to deal with the issues. Our expert employment lawyers can advise both employers and employees where issues of discrimination in the workplace have arisen and guide you through the whole process.
What is workplace discrimination?
Workplace discrimination occurs where one employee is treated differently because of a personal characteristic. Discrimination can take various forms and arise in the following situations:
- Employment terms and conditions
- Pay and benefits
- Promotion and transfers
- Training and recruitment
The law prevents the discrimination of employees under the Equality Act 2010 if they have certain protected characteristics. There are nine areas that are protected characteristics and these are:
- Gender identity or reassignment
- Marriage or civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
All the protected characteristics are equally important and claims can be made for a single protected characteristic (for example because an employee is pregnant) or based on a number of single and yet unrelated characteristics (for example an employee is pregnant and disabled).
As well as discrimination resulting from the above, it is also unlawful for an employee to be treated differently due to being part-time or a contract worker compared to those that are full-time and permanent.
Certain protected characteristics result in added requirements. For example, an employer is legally obliged to make "reasonable adjusts" to ensure that a disabled employee is not disadvantaged by a workplace requirement or practice. The employee should be involved in agreeing the adjustments and often they can be simple and inexpensive, such as making sure an employee is on a floor that is accessible to them.
Employees have 3 months from the most recent incident of discrimination to raise an action against their employer.
The forms of discrimination
Discrimination falls under four main categories under the Equality Act 2010:
Direct discrimination occurs where one employee is treated less favourably due to a protected characteristic that they possess. It is also possible for direct discrimination to occur where they are treated less favourably due to a protected characteristic of someone that they associate with.
Indirect discrimination can be less obvious and also can be unintentional. It occurs where a provision, criterion or practice is applied to a group of employees that results in those with a protected characteristic being disadvantaged compared to those without that characteristic, and the employer cannot justify the action. Those claiming indirect discrimination must prove that they have been (or could have been) personally disadvantaged. They also have to show how other employees with the same protected characteristic have been or could be disadvantaged by the provision, criterion or practice. It is possible sometimes for an employer to use indirect discrimination where there is "a proportionate means of achieving a legitimate aim".
Harassment is "unwanted conduct" and must relate to either a protected characteristic or be of a sexual nature. Its purpose or effect must be to violate the person's dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Protection arises under the Equality Act 2010 but also in certain circumstances from the Protection from Harassment Act 1997, which covers harassment that does not relate to a protected characteristic.
Victimisation occurs where an employee suffers a determinant due to them complaining about discrimination or harassment or supporting such a claim. It can also occur where an employee is suspected of doing one of the above.
Circumstances where discrimination is permissible
In certain circumstances, it is lawful for an employer to specify that an applicant needs to have a particular protected characteristic under the Equality Act due to "occupational requirements". For this to be lawful the fact that they wish to employ someone with a particular protected characteristic has to be crucial to the post, relate to the nature of the job and be a "proportionate means of achieving a legitimate aim". If it is possible to reach the same aim with a less discriminatory method then it is unlikely this route will be allowed. It is only possible to use this as a defence against a direct discrimination claim- it cannot be used where there is a claim of indirect discrimination, harassment or victimisation.
Discrimination is also not always a bad thing. An employer is permitted under the Equality Act 2010 to discriminate in favour or those with a protected characteristic and to take "positive action" to help employees or job applicants in certain circumstances:
- Where they are at a disadvantage due to their protected characteristic.
- Where they are under-represented at the organisation or their participation is disproportionately low, due to a protected characteristic.
- Where they have specific needs connected to a protected characteristic.
In order for the positive action to be lawful, the employer must be able to prove that it is reasonably considered and does not discriminate against others. If it is able to do this then it can legally:
- Take proportionate steps to remove any barriers or disadvantages.
- Provide support, training and encouragement for those with that protected characteristic to increase their participation.
Contact our Employment Law Team
Our employment lawyers are experienced with a wide range of employment law claims, including discrimination in the workplace, on behalf of both employees and employers. If you feel you have been treated unfairly, or you are an employer worried about discrimination issues, contact Lewis Nedas Law today call us on 020 7387 2032, complete our online enquiry form.