Discrimination

Unlawful treatment can make a job extremely difficult for employees, especially when they are suffering discrimination or harassment. Identifying when you are being discriminated against or harassed is often the first step to achieving a resolution. In some circumstances, the law assists by requiring the employer to prove that discrimination has not occurred.

Protected characteristics

The Equality Act 2010 (EA 2010) makes it unlawful to discriminate against someone based on the following ‘protected characteristics’:

• Age;
• Disability;
• Gender reassignment;
• Marriage and civil partnership;
• Pregnancy and maternity;
• Race;
• Religion or belief;
• Sex;
• Sexual orientation.

Types of discrimination

There are several types of discrimination and unlawful conduct that apply to the protected characteristics under EA 2010:

• Direct discrimination;
• Indirect discrimination;
• Harassment;
• Victimisation;
• Instructing, causing, inducing and helping discrimination.

Protection from discrimination at work

EA 2010 outlines the individuals protected from discrimination at work, including employees, workers, job applicants and contract workers.

The Act also provides situations whereby it is unlawful to discriminate against individuals at work. This applies to:

• Recruitment;
• Dismissal;
• Terms and conditions;
• Pay and benefits;
• Promotion;
• Training;
• Redundancy.

Liability for discriminatory acts falls on an employer if they discriminate or harass an individual.

In addition, an employer may be liable if an employee discriminates or harasses another employee in the course of employment. Similarly, an employer may be responsible if an employee is discriminated against or harassed by a contractor or agency engaged by their employer.  

It is also the case that an individual employee, including co-workers and managers, may be sued individually for unlawful discrimination. This is particularly relevant in cases of sexual harassment and victimisation. The individual’s financial circumstances may be at risk if sued as an individual respondent together with the employer.

When discrimination at work may be lawful

There are limited exceptions to the prohibition of discrimination which may provide an employer with a defence; these are:

• Occupational requirements;
• Positive action;
• Statutory provisions;
• National security;
• Providing benefits to the public.

Bringing an Employment Tribunal claim

If an employee believes they have been discriminated against, they may bring a claim against their employer (or a colleague) at an Employment Tribunal.

The claim must be brought within three months of the day which the Act that the complaints relate to occurred to be within the time limit. However, a Tribunal may extend the time limit if deemed appropriate. Time may also be extended because of the compulsory Acas early conciliation process, which can add up to 6 weeks to the original limit.

Potential remedies in discrimination claims

In successful discrimination claims, a Tribunal may make the following orders:

• A declaration that discrimination has taken place;
• Compensation to be paid by the Respondent, which may include injury to feelings and loss of pay;
• A recommendation directed at the employer.

We can assist if you think you have suffered discrimination or harassment at work.

Get in touch

Please get in touch with our Employment Litigation team for friendly advice and support. You can contact us on 023 8063 9311 or email enquiries@warnergoodman.co.uk.