A Brief Guide to Employment Discrimination: England & Wales

The following is a general guide to what constitutes discrimination in England and Wales. Every case is different, and the law is always evolving. We aren’t seeking to give legal advice in this brief tour. If you think you may be experiencing discrimination, you should seek counsel from lawyers who can evaluate your own circumstances in detail.

It is unlawful for employers to discriminate against you as an employee, worker or applicant because you have a protected characteristic, including:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race (including colour, nationality or ethnic or national origin) 
  • Religion or belief
  • Gender 
  • Sexual orientation 

 

There are different types of discrimination:

 

Direct discrimination

It is illegal for your employer to treat you less favourably because you have a protected characteristic. To show direct discrimination, you need to compare your treatment with the treatment of someone who doesn’t have the same protected characteristic as you.

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 the best clients, and so your male colleagues perform better and are promoted more readily than you. This may constitute unlawful discrimination.

You can also experience direct discrimination by perception. This happens if you are discriminated because someone thinks you hold a protected characteristic, even if you don’t actually hold that characteristic.

An employer refuses to promote you to a more senior, client-facing role, because your managers believe that you are gay. Even if you do not identify as gay, this is still unlawful conduct.

Additionally, you can experience direct discrimination because of someone you’re with, or someone you know. This is called direct discrimination by association.

You take time off work to take care of your disabled child, and you are disciplined by your manager. Your manager does not discipline employees who take similar amounts of time off work for other reasons. You may have a claim of discrimination because of your association with someone with a protected characteristic.

 

Indirect discrimination

Indirect discrimination occurs when a practice, policy or rule applies to all employees, but disadvantages those with a particular protected characteristic. You can challenge a practice, policy or rule only if it affects you personally. You will also need to show that other people affected by the policy, rule or practice (but not in the protected group) aren't disadvantaged.

There’s a clause in your contract which says that you might have to travel around the UK at short notice. If you’re a woman with young children, this may be difficult. The clause therefore puts you at a disadvantage, even though it is neutral and applies to everyone. It also places women generally at a disadvantage as they are more likely to be the carers or children. The clause may constitute indirect discrimination.

Indirect discrimination can sometimes be lawful. If your employer can demonstrate “objective justification” –  a good enough reason for the policy, practice or rule – then it is not unlawful.

 

Harassment

In the workplace, harassment is “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. Harassment can take a number of forms: it can be spoken abuse, offensive emails, online comments, images, gestures or facial expressions.

You can have a claim for harassment even if you do not hold the protected characteristic to which the harassment pertains.

A group of your colleagues are making offensive comments about Indian people in the company’s cafeteria. They aren’t addressed at anyone in particular, but they are audible to you and other people nearby, creating an intimidating and hostile environment. You may have a claim for harassment relating to race, whether or not you are Indian.

 

Sexual harassment

Sexual harassment is present when someone behaves in a way which makes you feel distressed, intimidated or offended and the behaviour is of a sexual nature. Sexual harassment can include sexual comments, touching, displaying pictures of a sexual nature, and sending emails with sexual content. Inappropriate advances or pressure to engage in sexual activity can constitute sexual harassment, but it can also come from comments or behaviour relating to sex that you find offensive or degrading.

You are a woman working in the open-plan office of a courier company. Some of your male colleagues have downloaded pornography and occasionally display it on their computers. Although you aren’t coerced to view the material yourself, you still find the behaviour offensive. You may have a claim for sexual harassment.

If you are experience poor or less favourable treatment because of your reaction to sexual harassment, this may also constitute harassment. The person who treats you less favourably can be the same person who committed the original act, but it does not have to be.

 

Victimisation & whistleblowing

It is unlawful to victimise an employee because they have raised or supported a grievance relating to discrimination. This provision applies to complaints and grievances against a third party. Additionally, the provision protects employees from victimisation if their employer believes that they raised or supported a grievance, even if they didn’t actually do so.

The employee in question must suffer a detrimental employment action. Dismissal and the obstruction of career progression are obvious ones. However, more subtle forms of victimisation, such as requiring a disproportionate number of unpopular night shifts, or refusing requests for annual leave, may also be prohibited.

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. You may have a claim for victimisation.

If you think you may have suffered discrimination at work, it is important that you seek prompt legal advice. For a confidential discussion of your legal options, contact us on +44 (0)20 7386 1047, or info@mcolaw.com.