Discrimination remains a pressing issue for many workers in the UK. It may have already affected your ability to secure employment or receive a fair wage, or may be creating a hostile work environment. The Equality Act 2010 provides vital anti-discrimination protections, aiming to ensure that differences in identity are not exploited by employers and that you are not treated less favourably because of one of your so-called “protected characteristics”.
Workplace discrimination can occur whether you are currently applying, employed, self-employed, or are now an ex-employee, and may happen just once or form a repeated pattern of behaviour. You can be discriminated against by your employer, a fellow colleague, or both.
Unlike claims of unfair dismissal, workplace discrimination does not require you to have been employed for a 2-year minimum period. This means you can claim workplace discrimination at any point during the term of your employment. Similarly, discrimination can take place at any stage, including the recruitment process itself, pay, promotions, redundancy, and even dismissal.
However, it is important to remember that claims of workplace discrimination must be made within 3 months (minus a day), of the discrimination taking place.
What Counts as Workplace Discrimination?
You may be experiencing workplace discrimination if you have been treated less favourably, or unfairly disadvantaged because of the presence of a “protected characteristic” – an aspect of your identity that is legally protected.
However, not all forms of less favourable treatment will be considered discrimination. Below are some prominent exceptions:
- Occupational Requirements: a candidate with a specific characteristic may sometimes be required because of an important aspect of the role. For example, a female candidate may be required for a job in a women’s refuge.
- Legitimate Aims: employers may be able to show that less favourable treatment is sometimes justified as a proportionate way of achieving a “legitimate aim”. For example, it may sometimes be legitimate to prefer a younger candidate because of health and safety concerns relating to the job.
- Positive Action: employers may take steps to hire candidates from a range of underrepresented backgrounds to diversify job opportunities.
If you are unsure whether your situation amounts to workplace discrimination, you can contact Find me a solicitor at www.findmeasolicitor.co.uk
What is a “Protected Characteristic”?
Discrimination claims must be based upon a “protected characteristic”. This refers to an important aspect of your identity, like your age, race, or sex. In essence, this means that an employer or colleague must be exhibiting a certain type of prejudice for workplace discrimination to occur. Section 4 of the Equality Act 2010 establishes 9 protected characteristics upon which discrimination is prohibited. These are:
- Age
The Equality Act 2010 protects you from age discrimination, whether you are young or old, and means your employer and colleagues cannot treat you “materially differently” based on your age group. It prevents employers from acting upon age-based presumptions about your capabilities, level of experience, or professionalism.
Some prominent examples of age-based discrimination may include:
- Only offering training to younger employees, because of prejudices related to the adaptability of older staff members.
- Rejecting a candidate because they are “too old” to engage with newer technologies.
- Disparaging comments regularly made about your age within the workplace.
However, there may sometimes be exceptions related to compulsory retirement, or where an employer can demonstrate that workers of a certain age are required to further a “legitimate aim”; for example, if there are age-related health and safety concerns.
- Disability
Your employer cannot treat you unfairly, because of a disability. You will be considered disabled if you have a mental or physical condition which has a significant and long-term impact on your day-to-day life. This generally means that your condition should impact your regular living in a way that is more than just trivial.
The condition should have impacted you for 12 months or longer. However, there are special rules relating to progressive or recurring conditions, while some conditions, like HIV, cancer, and multiple sclerosis mean you will fit the definition of “disabled” automatically from the moment of diagnosis.
The Equality Act 2010 also contains a positive duty for employers to make “reasonable adjustments” for disabled employees. For example, this could mean providing accessible materials like Braille or audio recordings, offering additional time for assessments, or ensuring the workplace has the correct equipment to accommodate your disability.
Some prominent examples of disability-based discrimination may include:
- Firing an employee for disability-related absence, with no attempt to make reasonable adjustments.
- Failing to ensure an accessible workplace.
- Refusing to hire a disabled candidate because of the need to make work adaptations.
- An employee being persistently mocked for their mental or physical health condition.
- Gender Reassignment
An employer or colleague cannot discriminate against you because you are proposing to transition gender, are currently undergoing transition, or have already partly or completely transitioned. To be protected under the category of “gender reassignment” it is not necessary to have undergone medical procedures, completed your transition, or be in possession of a Gender Recognition Certificate.
The law on gender reassignment may sometimes also encompass intersex and nonbinary people.
Some examples of gender reassignment-based discrimination may include:
- Firing an employee because they are proposing to transition.
- The use of transphobic comments within the workplace.
- Deliberate misgendering in the workplace.
- Treating an employee less favourably because of time they have taken off for gender reassignment procedures.
- Marriage and Civil Partnership
You cannot be discriminated against within the workplace because you are married or currently in a civil partnership. This does not cover if you’re single, engaged, cohabiting, widowed, divorced, or have had your civil partnership dissolved. However, you can still experience marriage and civil partnership-based discrimination if you are separated but have not yet formally divorced or dissolved your civil partnership.
Some examples of marriage and civil partnership-based discrimination may include:
- Being denied a promotion because your employer assumes that, because of your marriage or civil partnership, you will be less committed.
- Excluding employees who are married or in civil partnerships from opportunities because of assumptions made about their flexibility or availability.
- Pregnancy and Maternity
Pregnancy and maternity-based discrimination may occur if you are treated less favourably because of your pregnancy, a related illness, or because you are currently taking or otherwise entitled to maternity leave. You must be able to show that your employer was either made aware of your pregnancy or otherwise should have known.
The “pregnancy and maternity” period generally begins when you become pregnant and ends at the termination of your maternity leave, when you return to your job, or otherwise decide to leave. If you are not entitled to maternity leave or experience a miscarriage, the protected period finishes two weeks after. However, if you experience pregnancy or maternity related discrimination after the protected period, you may still be able to make a workplace discrimination claim, but it may be categorised as sex-based discrimination.
Some prominent examples of pregnancy and maternity-based discrimination may include:
- Refusing to promote an employee because they are pregnant and will soon go on maternity leave.
- Reducing an employee’s responsibilities significantly when they return to work after maternity leave.
- Race
Race-based discrimination includes discrimination based on ethnicity, nationality, skin colour, and nation of origin. Discrimination can take place on the basis of one or multiple of these aspects.
Some prominent examples of race-based discrimination may include:
- Rejecting an applicant during the application process because of their race.
- Racial slurs and bigotry within the workplace.
- Segregating employees based on race.
- Religion and belief
The Equality Act 2010 does not permit discrimination based on any religious membership. Philosophical beliefs may also sometimes be protected, provided they are genuinely held, go beyond mere opinion, are clear, concern something significant, and can be considered “worthy of respect in a democratic society”. Examples of beliefs that have been previously protected include veganism and environmentalism. Not having a religion or belief is also protected.
Some prominent examples of religion and belief-based discrimination may include:
- Prohibiting the wearing of religious clothing or symbols within the workplace.
- Unjustifiably refusing reasonable time for prayer.
- Disparaging comments made about someone’s religion or beliefs within the workplace.
- Sex
Sex-based discrimination may occur when employers or colleagues offer less favourable treatment based on the sex recorded on your birth certificate. This includes less favourable treatment of breast-feeding women.
Some prominent examples of sex-based discrimination may include:
- Paying female employees less than their male colleagues for equivalent work.
- Refusing to hire a certain gender without an occupational requirement.
- Gender-based harassment within the workplace.
- Sexual orientation
Sexual-orientation-based discrimination may occur if you are treated less favourably within the workplace because of the gender you are attracted to. This includes discrimination which takes place because you are attracted to the same gender, the opposite gender, or both.
Some prominent examples of sexual-orientation-based discrimination may include:
- Disparaging comments made within the workplace on the basis of your sexual orientation.
- Differential treatment because of your sexual orientation. For example, if a heterosexual colleague is granted leave to attend their partner’s event, but you are denied leave for a similar situation, simply because your partner is the same sex.
- Being denied a promotion because of your sexual orientation.
How Can Workplace Discrimination Occur?
Workplace discrimination may take a variety of forms, and can be a consistent or singular occurrence. Some prominent examples may include, but are not limited to:
- Being refused a job because of a protected characteristic.
- Being paid less than equally qualified colleagues because of a protected characteristic.
- Belittling comments made on the basis of a protected characteristic.
- A workplace refusing to make reasonable adjustments to account for your disability.
- Being dismissed or made redundant because of a protected characteristic.
- The implementation of a rule which disproportionately impacts you because of a protected characteristic.
How can I seek legal action?
The 3-month time limit means that it is important to act early in discrimination-related cases. It is also mandatory to undergo the ACAS Early Conciliation process, before you can file a claim. This is a dispute settlement procedure, where ACAS (The Advisory Conciliation and Arbitration Service) liaises with you and your employer or colleague in an attempt to resolve the issue before it reaches the Employment Tribunal. If no resolution is achieved, then you can proceed with your claim.
Workplace discrimination can be a complicated and tough-to-navigate issue. It is often difficult to know where to start, if what you have experienced amounts to discrimination under the Equality Act 2010, whether it has taken place on the basis of a protected characteristic, and whether your employer may have a defence.
That’s where Find Me A Solicitor steps in. Our advisors can review the facts of your situation and help to match you with a solicitor whose expertise and costs match your individual needs and budget.
Written by Kristin Poole