If you’ve been discriminated against at work, we can help you uphold and defend your rights through our legal aid discrimination contract. Ash O’Keeffe, our employment and discrimination caseworker, answers some common questions about discrimination in the workplace.
What do we mean by discrimination?
Under legislation called the Equality Act 2010, employees and workers and prospective employees and workers are protected from experiencing discriminatory behaviour from an employer, colleague or anyone acting on behalf of an employer if they have what is known as a ‘protected characteristic’.
What are the protected characteristics?
In the Equality Act there are nine protected characteristics – this means any discrimination relating to those nine things will be considered unlawful.
The protected characteristics are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation; and
With regards to disability, as a protected characteristic this isn’t just a disability that you can see – for example someone who struggles with mobility and needs to use a wheelchair. The definition of disability actually extends to anyone who has a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. ‘Substantial’ is more than minor or trivial; and ‘long-term’ means 12 months or more. For example, if you suffer from severe depression and anxiety, and have done so for more than 12 months and this has had a substantial negative impact on your ability to do day to day activities, although your depression and anxiety isn’t necessary a condition that can be seen with the naked eye, it would be categorised as a disability.
How are these characteristics ‘protected’?
You have the right not to be treated less or unfavourably due to a protected characteristic.
If, for example, someone told you that the reason you were not being offered a job, was not because you may not be qualified for the role but because you were too old to fit in with the young workforce already in place, this would be considered age discrimination under the Equality Act.
Do I need to possess the protected characteristic myself in order to be discriminated against?
You can be discriminated against if you don’t possess one of the nine protected characteristics, but you are associated with someone who does. For example, if a company decided not to hire a parent who has a disabled child, because they believe the candidate would need to take too much time off work to care for their child, this would be disability discrimination by association. The parent could make a claim at a tribunal if they believed that the disability of their child was the only reason that they weren’t selected for employment.
Another form of discrimination might be where someone believes you have a protected characteristic, even though you don’t, and treats you less favourably because of that belief. For example, imagine you are heterosexual and you went for a promotion at work, but your employer is homophobic and believes that you are gay and so denies you the promotion on that basis. This would be considered sexual orientation discrimination which again is unlawful.
Can I be indirectly discriminated against?
The examples given so far are all examples of what is known as direct discrimination. Another type of discrimination is indirect discrimination. This describes situations where policies, practices or procedures are put in place that on face value appear to treat everyone equally but, in practice, are less fair to those with a certain protected characteristic under the Equality Act.
For example, it may be that a certain role requires all applicants to be a minimum height for a job where height does not necessarily impact carrying out the role. Such a requirement might be applied to all those applying for the job but it would likely discriminate disproportionately against women as they are generally shorter than men.
Are there any circumstances where discriminatory behaviour is allowed?
There are some types of behaviour which may be considered discriminatory, but provided that the employer can show that the discriminatory behaviour is what’s known as a proportionate means of achieving a legitimate aim, then it will be considered lawful. For example, if a theatre company is advertising auditions for female actors only to perform in the role of Eliza Doolittle in a traditional production of ‘My Fair Lady’ then although the advert can be deemed as sex discrimination as it excludes all men, the theatre production company can justify the discriminatory advert as being a proportionate means of achieving a legitimate aim – that being putting on a traditional theatre performance of a play which denotes a female character.
Does harassment count as discrimination?
Harassment is another type of discrimination is. This is basically unwanted conduct related to the protected characteristics of age; disability; gender reassignment; race; religion or belief; sex and sexual orientation; and which has the purpose or effect of violating a person’s dignity or creates a hostile, degrading, humiliating or offensive environment. A type of harassment in the workplace might include, say, a Sikh employee, who wears a turban, being mocked by colleagues who are using derogatory terms or comments such as calling the Sikh employee a “terrorist”. This would be considered both racial and religious harassment.
Are there any other types of discrimination?
The final type of discrimination is victimisation. This is where the Equality Act protects you from experiencing any adverse consequences of bringing a complaint of discrimination under the Equality Act. So, if you make a complaint or grievance at work because you believe you have been discriminated against by your employer or a colleague, and then following on from that complaint or grievance you are treated less favourably, for example by not being offered the same training opportunities as other staff, this would be considered victimisation, which is unlawful.
What should I do if I think I’m being discriminated against?
There are some practical actions you can take if you believe you’re being discriminated against at work or in an employment setting. It’s a good idea to keep a record or diary of what is happening to you so you have evidence of the discrimination – it will be important if you decide to make a complaint or bring a legal claim. It’s also a good idea to raise the issue with your employer first – whether that be through an internal complaints or grievance procedure, or via your trade union representative if you have one.
Where can I get help and advice about discrimination?
If you think you are being discriminated against, it is worth speaking with a legal representative who will help you understand your legal rights and how to bring a claim. It’s important to remember that if you want to bring a claim against an employer or a colleague for discrimination you have three months to file your claim from the date of the discriminatory act – so time really is of the essence.
If you have a workplace issue and believe that it involves discrimination under the Equality Act then you can get in touch with us here for help to see if you have a claim against your employer.