Discrimination

What is discrimination?


Discrimination is when someone is treated unfairly for any of these reasons:

  • age;

  • disability;

  • sex;

  • sexual orientation;

  • marriage or civil partnership;

  • pregnancy or maternity;

  • race (including colour, nationality, ethnic and national origin);

  • gender reassignment; and

  • religion or belief.

These reasons are called 'protected characteristics' under the Equality Act 2010.


Discrimination based on any of these protected characteristics is usually against the law.

There are several types of discrimination.


Under the Equality Act, it is unlawful to discriminate, harass or victimise someone because they have or are perceived to have a “protected characteristic” or are associated with someone who has a protected characteristic.



Types of discrimination


Discrimination is a type of unfair treatment. It can be direct or indirectOther types of discrimination include harassment, bullying and victimisation.

If you believe that you have been discriminated against when applying for a job contact us.

Direct and indirect discrimination


Direct discrimination


This arises when you are treated unfairly or worse than someone else because:

  • You have a protected characteristic, such as your race or age.

  • Someone thinks you have that protected characteristic (this is known as discrimination by perception).

  • You are connected to someone with that protected characteristic (this is known as discrimination by association or associative discrimination).


An employer should not ask prospective candidates questions about any protected characteristic eg marital status, sexual orientation when employing new staff members except in limited cases.

You can be discriminated against by a person who shares the same protected characteristic as you.

Direct discrimination on the ground of race:


Example 1

You are refused promotion because you are black, and the post goes to a less qualified or less experienced white man.


Direct discrimination by perception:


Example 1

An employer does not interview a job candidate because the applicant has an ethnic sounding name. This is direct discrimination irrespective of whether or not the job candidate has the characteristic.

Example 2

A supermarket is seeking to employ a check-out assistant. In the job application form, they put in a question asking if the applicant has any disabilities that will affect the applicant doing the job efficiently.


As disability is a protected characteristic, this question is unlawful. The employer should have asked all candidates if they require the employer to make any reasonable adjustments to complete the interview or any part of the employment process.

Marriage and civil partnership

The law on discrimination by perception does not cover marriage and civil partnership.


Direct discrimination by association


This means treating someone less favourably than another person because they are associated with a person who has a protected characteristic. This is called 'associative discrimination' or 'discrimination by association'.


Example 1


An employer offers flexible working to staff. Requests for flexible working are supposedly considered based on business need. A supervisor allows a man’s request to work flexibly to train for his ACCA qualification but does not allow another man’s request to work flexibly to care for his disabled daughter. If the supervisor’s decision is because the man’s daughter is disabled, this is likely to be direct disability discrimination because of the man’s association with his disabled child.


Example 2

Eva has a cousin who has undergone a sex change. After some of her friends find out about the surgery, they stop inviting Eva to lunch and to the office table tennis tournaments that take place every fortnight. This could be associative discrimination as gender change is a protected characteristic under the Equality Act 2010.

Discrimination arising from disability

This entails treating a disabled person unfavourably because of something connected with their disability with no objective justification.


Example 1


An employer dismisses a worker because he has taken three months’ sick leave. The employer is aware that the worker has leukaemia and most of his sick leave is because of his disability. The employer’s decision to dismiss is not strictly due to the employee’s disability. The employee was treated unfavourably as a result of something arising in consequence of his disability (i.e. the need to take a period of sick leave related to his disability)

Definitions of discrimination and unlawful behaviour in the Equality Act 2010




Harassment


What is harassment?


Harassment is defined as unwanted behaviour related to a protected characteristic eg race,sex, gender, sexual orientation etc which has the purpose or effect of violating someone’s dignity or which creates a hostile, degrading, humiliating or offensive environment.


Example 1


A builder addresses abusive and hostile remarks to a customer because of her race after their business relationship has ended. This would be harassment.

Employers are currently liable for harassment of their staff by people they do not employ.


Victimisation


What is victimisation?

Victimisation is treating someone unfavourably because they have taken some form of action relating to the Equality Act, e.g. made a complaint of discrimination under the Act or supported somebody who is doing so by for example appearing as a witness at a disciplinary hearing or at the Employment Tribunal.


Example 1


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 were subsequently refused a promotion because of that action, they would have suffered victimisation in contravention of the Act.


Objective justification


What is objective justification?

An employer can defend some discrimination claims such as Indirect discrimination, Direct age discrimination and discrimination arising from disability by arguing that the discrimination is justified. This defence is called “objective justification”.


Where this occurs if the employer or service provider can show that the practice or treatment is a proportionate means of achieving a legitimate aim then the claim will not succeed.


The objective justification test is applied in two stages: