There are nine categories of individual who are protected from unlawful discrimination under the Equality Act 2010. These are called “protected characteristics”.
What are the protected characteristics?
- Race or ethnic origin;
- Religion or Belief;
- Pregnancy and/or maternity;
- Sexual Orientation;
- Marriage & Civil Partnership;
- Gender Reassignment.
What is Discrimination?
There are a number of different types of discrimination that are unlawful under the Equality Act.
Direct discrimination occurs where someone is treated less favourably because they possess one of the protected characteristics. An example would be refusing to hire a candidate because they are gay.
Indirect discrimination occurs where a “provision, criterion or practice” (“PCP”) is in effect which has a disproportionate negative impact on a group of individuals who share a protected characteristic. If an employer cannot show objective justification for the PCP, this will amount to unlawful discrimination. This could mean having a dress code policy that prevents employees from wearing their usual religious dress.
Harassment will occur if there is unwanted conduct which is “related to” a protected characteristic. It occurs when an individual engages in unwanted conduct which has the purpose or effect of either violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This could include making unwanted sexual advances towards a fellow colleague, or forms of “banter” that are based on a protected characteristic.
Victimisation occurs where an employee is subjected to a detriment because they have done, or may do, a “protected act”. For victimisation purposes, a protected act can be bringing proceedings or giving evidence or information in relation to proceedings under the Equality Act, alleging that they (or someone else) has been discriminated against, or doing anything else for the purpose of or in connection with the Act. An example would be an employee that raises a grievance alleging that they have been racially harassed, who is then given less favourable job duties at work.
Failure to Make Reasonable Adjustments
There is also a duty on employers to make reasonable adjustments in the workplace for disabled employees and job applicants. The duty can arise if a disabled person is placed at a substantial disadvantage by a PCP, a physical aspect of the employer’s premises, or a failure to provide an auxiliary aid. An example would be an employee with epilepsy who has to work under fluorescent lighting when this could cause seizures. A reasonable adjustment could mean changing the form of lighting in the office.
In addition to the primary forms of discrimination above, you could also be liable for discrimination if you cause, induce or help someone to discriminate against, harass or victimise another person, or to attempt to do so. Pregnant employees and those on maternity leave also have additional protection and are protected from unfavourable treatment and may have the right to be placed automatically into a suitable alternative vacancy if their role is made redundant whilst they are on maternity leave. Liability can also arise if you discriminate against someone based on perception, or associatively because they are connected with someone that possesses a protected characteristic. There are also some circumstances where you could be liable for discrimination after the employment relationship has ended.
Compensation for discrimination
An employee who succeeds in a discrimination claim before a Tribunal may be awarded compensation for loss of earnings if they have had to leave their job and also an award for “injury to feelings”. There is no maximum limit on compensation that can be claimed for discrimination, although it usually falls into three brackets under the Vento guidelines. The maximum compensation provided for by Vento can be in the region of £43,000.
Compensation can also be awarded to an employee who still works for the employer but has been discriminated against.
How can my workplace prevent discrimination from occurring?
Although this is not something that is required by law, it is recommended that all employers should have an equal opportunities policy in place to address fairness at work and to prevent discrimination. Employers should also have an action plan to ensure that the policy is revisited from time to time. The policy will enable an employer to show to their employees, potential recruits and customers that they are serious about fairness and tackling discrimination and it will help employees understand their responsibilities to their colleagues and customers. Training on anti discrimination and equal opportunity measures should also form part of the employer’s obligations towards its employees.
What should I do if I think I have suffered discrimination?
You should initially raise it with your manager and if no action is taken to your satisfaction you can put in a grievance. Read our guidance on grievances here.
If you need help to put your grievance together or to consider whether you might have a claim, contact our experts for confidential advice.