Frequently Asked Questions

Discrimination

 

What is discrimination?

Discrimination is unfair or unequal treatment of a person because of who they are or because they possess certain “protected characteristics”. Under English law, protected characteristics are age, disability, sex, race, religion and belief, sexual orientation, pregnancy and maternity, marriage and civil partnership and gender reassignment.

 

Yes. As a worker you are protected under the Equality Act 2010 from being discriminated against on the grounds of a protected characteristic. These laws apply whether you are an employee, self-employed, working through an agency, a company director, a partner of a firm or on secondment. Further, this protection applies to all stages in the employment process including recruitment, promotion, retirement, selection for redundancy and dismissal.

You can claim that you have been discriminated against based on one protected characteristic or several.

There are a few very narrow occasions when an employer is allowed to discriminate, for example, requiring an actor to be a certain age to play a particular role; or employers can take positive action and can recruit or promote someone form an under-represented or disadvantaged group where they have a choice between two or more candidates who are “as qualified as each other”.

I think I have been discriminated against at work. Can the law help me?

 

To show direct discrimination, you need to compare your treatment with that of someone who doesn’t have the same protected characteristic as you - this can be either an actual person or a hypothetical one.

Example 1: A director at an investment bank gives his best clients to his male employees, because he thinks they can bond with clients over subjects like rugby and drinking. As a female employee, you do not have access to these clients and so your male colleagues perform better and are promoted more quickly than you.

This is illegal discrimination. Everyone is entitled to an equal chance at success at their employer, who may not make employment-related decisions based on employees’ protected characteristics.

Example 2: Your employer refuses to promote you to a more senior, client-facing role, because your managers believe you are gay. 

This is illegal discrimination, even if you do not identify as gay. If someone discriminates against just because she or he believes you hold a protected characteristic, it is just as illegal as if you do hold the protected characteristic. This is otherwise known as perceived discrimination. 

Example 3: You have to take time off to care for your disabled child and as a result your manager disciplines you; yet s/he does not do the same with employees who take similar amounts of time off work for other reasons.

This is illegal discrimination. In this case, your manager is discriminating against you because you are associated with someone who has a protected characteristic, i.e. your child. This is otherwise known as associative discrimination. 

Example 4: there’s a clause in your contract that says you have to travel at short notice. 

This may be illegal discrimination.  This type of clause places women generally at a disadvantage as they are more likely care for children and this may be indirect sex discrimination. The condition doesn’t have to be a formal policy but can be an unwritten rule like “hot desking” that puts you at a disadvantage because for example, you have a disability. The employer can only justify this condition, if it can show that it is a justifiable business practice.

How do I prove I’m being discriminated against?

 

Yes, Disability discrimination has additional protections.

Example 1: You are disciplined for taking a sick absence as a result of your disability.  This may be discrimination arising from disability. In this case, there is no requirement for you to compare your treatment to another employee who does not have a disability. However, the employer can justify its treatment of you, if it is a “proportionate means of achieving a legitimate aim”.

Example 2: You suffer from a disability and are on sick leave, but if reasonable adjustments were made to your working arrangements, you would be able to return to work, for example, a phased return to work that permitted you to work partly from home. Your employer has refused to make these adjustments. This may be illegal discrimination as a result of the employer’s breach of duty to make reasonable adjustments. The employer would have to justify its decision not to make these reasonable adjustments.

I am disabled, do I have any other protection?

 

Yes. This is called victimisation.  It occurs when you have been treated less favourably as a result of having made, tried to make or helped someone else to make, or been assumed to have made, a complaint or grievance.

Example: You give evidence to an investigation into race discrimination that results in your manager being disciplined. A few weeks after the case closes, your manager refuses you a promotion, saying he will never forget about your testimony to the tribunal.

This is illegal victimisation.

To make a case of victimisation, you need to show that you have been put at a disadvantage or suffered a detriment such as dismissal or obstruction of career progression. However, there can be more subtle forms of victimisation, such as requiring a disproportionate number of unpopular night shifts or refusing requests for annual leave that may also be relevant.

I think I am being picked on because I made a complaint or helped a friend with his/her grievance. Am I protected?

 

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