Discrimination at work
As a firm that specialises in employment law, Spencer Shaw Solicitors has a great deal of knowledge and experience which we can call on to provide you with advice and support in the complex area of discrimination law. We aim to use plain English in our conversations and written material to ensure you can make the best decisions about your claim.
What is discrimination at work?
Discrimination at work or employment discrimination are common terms used to describe the behaviour by an employer or one of their employees who unlawfully discriminate against an employee because of:
Age
Disability
Gender reassignment
Marriage or civil partnership
Pregnancy or maternity
Race
Religion or belief
Sex or sexual orientation.
These are called Protected Characteristics.
The relevant legislation is the Equality Act 2010. This is an Act of Parliament designed to prevent and protect against discrimination. It applies to employees, ex-employees, contract workers, applicants for employment and sometimes even self-employed workers in some cases.
We refer below to employees but bear in mind that even if you aren’t actually an employee, but work for someone under a contractual arrangement, the law may apply to you.
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What is the meaning of discrimination in employment law?
Discrimination has a specific legal meaning, different from its everyday usage. It doesn’t just mean poor treatment. Someone is discriminated against by their employer if they are treated less favourably than another employee who doesn’t have that employee’s Protected Characteristic. The less favourable treatment must be because of the Protected Characteristic to be discriminatory and to allow a claim to be made.
Employees who are pregnant or who take maternity leave are protected from unfavourable treatment or detriment. There is no need to compare them with anyone else. The unfavourable treatment must be because the employee is pregnant or on maternity leave to be discriminatory and to allow a claim to be made.
There are time limits.
If you think that you have suffered from discrimination at work, you have the right to make a complaint to an Employment Tribunal within three months of the act complained about. It’s possible for employees to complain about several incidents of discrimination over time as long as the last one is within three months of the time that a complaint can be made.
The Employment Tribunal can extend the time for making a claim beyond three months if the Tribunal thinks it’s right to do so (it’s just and equitable to allow the claim to proceed). So please still speak to us even if something happened to you that you think was discrimination, but occurred more than three months ago.
There are two types of discrimination.
Direct Discrimination
This occurs when an employee is less favourably treated because of a Protected Characteristic. That is, there is a direct connection between the employer’s conduct and the Characteristic. Refusing to employ someone because they are from an ethnic minority background or not paying women the same as men, even though they do the same job would be direct discrimination.
Example: A female employee’s appraisal duties are withdrawn while her male colleagues at the same grade continue to carry out appraisals. Although she was not demoted and did not suffer any financial disadvantage, she feels demeaned in the eyes of those she managed and in the eyes of her colleagues. The removal of her appraisal duties may be treating her less favourably than her male colleagues. If the less favourable treatment is because of her sex, this would amount to direct discrimination.
Indirect discrimination
This happens where an employer has a policy or practice that has the effect of treating employees with a Protected Characteristic less favourably than those who don’t have the Characteristic. It’s indirect because the policy or practice isn’t on the face of it discriminatory; it’s the effect of the policy that’s important. It doesn’t matter that the employer doesn’t intend to discriminate.
Example: A hairdresser refuses to employ stylists who cover their hair, believing it is important for them to exhibit their flamboyant haircuts. It is clear that this criterion puts at a particular disadvantage both Muslim women and Sikh men who cover their hair. This may amount to indirect discrimination unless the criterion can be objectively justified.
Failure to make reasonable adjustments.
For those employees who are disabled as defined in the Equality Act 2010, the law provides protection. The Act says that a person has a disability if they have a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities. Physical or mental impairment includes sensory impairments such as those affecting sight or hearing.
An employer must make reasonable adjustments to the job or the workplace to make sure that an employee with a disability is on a level playing field with able-bodied colleagues; if not the employer may be liable for discriminating against the disabled employee by failing to make reasonable adjustments.
Example: An employer has a policy that designated car parking spaces are only offered to senior managers. A worker who is not a manager, but has a mobility impairment and needs to park very close to the office, is given a designated car parking space. This is likely to be a reasonable adjustment to the employer's car parking policy.
Victimisation is a kind of discrimination at work.
The Act prohibits victimisation. Victimisation is a kind of discrimination. The offence exists to prevent employers mistreating or punishing those who have claimed the protection of the law or tried to help others to do so.
It is victimisation for an employer to subject a worker to a detriment because the employee has done a 'protected act' or because the employer believes that the employee has done or may do a protected act in the future.
A protected act includes the following:
Bringing legal proceedings under the Equality Act 2010;
Giving evidence or information in connection with proceedings brought under the Equality Act 2010;
Making an allegation that another person has done something in breach of the Equality Act 2010.
Example: An employer threatens to dismiss a staff member because he thinks she intends to support a colleague's sexual harassment claim. This threat could amount to victimisation, even though the employer has not actually taken any action to dismiss the staff member and may not really intend to do so.
Example: A non-disabled worker gives evidence on behalf of a disabled colleague at an Employment Tribunal hearing where disability discrimination is claimed. If the non-disabled worker is subsequently refused a promotion because of that action, they would have suffered victimisation in contravention of the Act.
Harassment at work can be discrimination.
Harassment is a type of discrimination. It happens when a person engages in unwanted conduct which is related to a relevant Protected Characteristic and which has the purpose and effect of violating an employee’s dignity, creates an intimidating, hostile, degrading, humiliating or offensive environment for the employee.
The Equality Act 2010 prohibits three types of harassment. They are:
Harassment related to a relevant Protected Characteristic;
Sexual harassment;
Less favourable treatment of an employee because they submit to, or reject, sexual harassment related to sex or gender reassignment
The relevant Protected Characteristics are: age, disability, gender reassignment; race, religion or belief; sex, sexual orientation
Example: During a training session attended by both male and female workers, a male trainer directs a number of remarks of a sexual nature to the group as a whole. A female worker finds the comments offensive and humiliating to her as a woman. She would be able to make a claim for harassment, even though the remarks were not specifically directed at her.
The steps we recommend you take.
The law on discrimination is detailed and complex. Before you consider taking a case of discrimination at work to an Employment Tribunal, we recommended that you follow the course of action below.
Step 1 - Informal action
Talk to your employer and try to resolve the matter
Step 2 - Formal action
Use your company’s grievance procedure or make a formal written complaint
Step 3 - Attempt conciliation
ACAS can help with this. ACAS is the Advisory, Conciliation and Arbitration Service. http://www.acas.org.uk
We can help you at any stage but it’s useful to speak to us early on. Taking the matter to Tribunal can be stressful and expensive and we may be able to support you in resolving the problem quickly and without the need for legal proceedings.
What could you expect from a successful claim of discrimination at work?
Compensation is the usual remedy for discrimination at work. There is no upper limit on the amount of compensation awarded. Before making a claim, it’s worthwhile checking what you are likely to be awarded if your claim was successful. It will allow you to decide if this is the course you want to take.
The Tribunal may also require your employer to act to remove the conditions which are causing the discrimination. If they fail to do so, you could receive compensation or your compensation could be increased.
Get in touch
Do you have a legal matter you'd like to discuss with us? Whether you're an employer or employee we'd love to hear from you. Get in touch using the details below or use the form here and a member of our team will be in touch to discuss your enquiry.
Phone: 0121 452 5130
Email: enquiries@spencershaw.co.uk
Address: Spencer Shaw Solicitors Limited
Vancouver House, 111 Hagley Road, Edgbaston, Birmingham B16 8LB
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Monday - Thursday 9:00AM - 5:30PM
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