Discrimination in Employment – Frequently Asked Questions

The word ‘discrimination’ is often used to describe being treated unfairly, but the law does not prevent employers from treating employees differently: otherwise managing a workforce would be impossible.

What the Equality Act prevents is employers treating employees differently for a particular reason which has nothing to do with their work but is based on something personal to them – these are called ‘protected characteristics’. That treatment is ‘unlawful’ and entitles the employee to damages.

There are 9 protected characteristics:

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

‘Belief’ has been developed further by the courts to include a particular philosophy or world-view, including veganism, man-made climate change, and public service.

There is no minimum length of service required for anyone to bring a claim for unlawful discrimination – in fact, a claim can be made by someone who never in fact ever becomes an employee, e.g. if a job advert is discriminatory (“young woman required”).

This is complicated. Employers and employees can both be liable for acts of discrimination which happen in connection with work. So claim for discrimination can be brought against the employer (as an organisation) and also against the individual who made the decision/comments etc.

It will be the role of the Employment Tribunal to decide whether the employers is liable for the acts of their employees, even though they may not have known or had any input into the decision. This is known as vicarious liability. An employer can contest vicarious liability by showing they took all reasonable steps to try to prevent discrimination from occurring in the first place, e.g. by means of training staff.

While claims for unfair dismissal are ‘capped’ in the ET at one year’s salary, there is no such limitation on damages for discrimination are technically uncapped in the amount a panel can award. The damages measure ‘injury to feelings’. Often this depends on medical evidence, e.g. whether any medication was required. There are published guidelines, known as the ‘Vento’ bands, which are Lower (£900-£9000), Middle (£9000-£27,000), and Upper (£27,000-£45,000).

There are 4 ways in which discrimination can occur due to any of the 9 protected characteristics:

Direct discrimination, Indirect discrimination, Harassment, Victimisation:

1. Direct – being treated less favourably because of a protected characteristic they have, which someone they are associated with has (e.g a member of their family or a colleague), or something they are perceived to have (e.g. disability/sexual orientation). Intention on the part of the employer does not have to be proven, it can be ‘unconscious’. Apart from very few exceptions (e.g jobs which only a woman or man can do), there is no defence.
2. Indirect - usually less obvious than direct discrimination and is normally unintended. It generally occurs when a rule or policy is brought in which applies to everyone and put those with a certain protected characteristic at a disadvantage. An example is giving warnings after a certain number of absences – this could indirectly discriminate against someone with a disability. The employer can have a defence if they can show the rule existed for a good reason and took account of individual circumstances.
3. Harassment – the definition is broad of ‘unwanted conduct’ related to a protected characteristic – this has either the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. So, it includes gossip, nicknames, ‘banter’, emails, and questions about personal issues. It is judged from the perspective of the person, and does not need to be intentional, or even known about by the employer.
4. Victimisation – where an employee suffers a ‘detriment’ because they have made an allegation of discrimination (e.g. a grievance or claim to the ET), or supported someone else doing so. ‘Detriment’ also has a broad definition which includes being ignored, transferred, refused work or training. Like all discrimination cases, the employee does not have left employment – although dismissal could be a ‘discriminatory act’ in its own right.

There are two additional ways in which those who are treated as disabled under the Equality Act can be discriminated against – failure to make reasonable adjustment and discrimination arising from disability. These are also a whole host of rules covering employees who take maternity leave. Each are covered in more detail in our dedicated pages to disability discrimination and maternity rights.