What is discrimination?
Discrimination takes many forms. You as an employee could have been discriminated against if you have any protected characteristics, and are either directly or indirectly discriminated against, or you experience bullying or harassment in the workplace because of them.
The protected characteristics are:
- Gender reassignment
- Religion or belief
- Sexual orientation
- Marriage and civil partnership
- Pregnancy and maternity
We have covered certain examples of discrimination separately. This guide simply outlines the many forms which discrimination can take.
Discrimination can come in different forms
Direct discrimination occurs if you are treated less favourably than others because of a protected characteristic. For example, being rejected for a job because of your religious views or because you might be gay.
You could be being indirectly discriminated against if your employer is putting rules or arrangements in place that apply to everyone, but that put you or someone with a protected characteristic at an unfair disadvantage. For example, requiring a job to be done full-time rather than part-time would adversely affect women because they generally have greater childcare commitments than men. Such a requirement would be discriminatory unless it can be justified.
Harassment could be happening to you if a person in the workplace is conducting unwanted behaviour linked to your protected characteristic that violates your dignity or creates an offensive environment for you. This includes sexual harassment.
You could be being victimised if you are being treated unfairly because you have complained about discrimination or harassment.
Are you an employer who needs guidance? Click here https://www.equalityhumanrights.com/en/advice-and-guidance/equality-act-guidance
If you require any legal assistance and think you have a claim for discrimination, at Thrive, we would be happy to help. Acas has also provided guidance on discrimination here: http://www.acas.org.uk/index.aspx?articleid=3017.
Age is one of the nine protected characteristics under the Equality Act, alongside disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation [LINKS]. As an employee, apprentice, worker or a job applicant, you are entitled not to be discriminated against because of your age.
Acas has provided a helpful guide on age discrimination. [http://www.acas.org.uk/media/pdf/o/1/Age_discrimination_key_points_for_the_workplace.pdf]
Direct discrimination occurs where you are treated less favourably because of your rage, such as where it is assumed that, because of your age, you cannot manage a team and therefore you are not offered a promotion.
An employer will also be discriminatory if it instructs, causes or induces another to commit age discrimination, such as by instructing HR not to include younger individuals in consideration for promotion, or suggesting that older employees are approached first for prospective voluntary redundancy.
Indirect discrimination occurs where, a particular provision, criterion or practice is in place which puts you at a particular disadvantage due to your age even if it applies to everyone equally. To avoid claims of discrimination, selection criteria, policies and rules for job applicants should be neutral and carefully drafted. For example, if an employer were to advertise a position requiring at least five GCSEs at grades A to C without permitting any equivalent qualifications, this criterion would put at a particular disadvantage everyone born before 1971, as they are more likely to have taken O-Level examinations rather than GCSEs. This might be indirect age discrimination if the criterion could not be objectively justified.
If you believe you may be being treated in a discriminatory manner by an employer, please contact us
Bullying and harassment
What is bullying and harassment?
Bullying itself is not against the law but harassment is unlawful under the Equality Act 2010. This can include behaviour that makes someone feel intimidated, offended, degraded or humiliated
It is common for some harassing behaviours to be identified as “banter”, and some teasing between friends can be acceptable. However, there is a fine line between banter and harassment and employees and managers should be careful not to cross that line.
Did you know?
Acas statistics shows us that from a survey done on how many grievances relating to bullying and harassment are made in a workplace with 10 or more employees increased from 3% of workplaces had received at least one complaint prior 1998 to 7% by 2004.
Examples of such unwanted behaviour could include:
- Spreading malicious rumours in the work place.
- Being treated unfairly, being excluded or being picked up on performance when it’s unwarranted
- Being picked on or being undermined regularly
- Being denied of training or promotion opportunities for no fair reason
Harassment is also a form of discrimination which can be related to:
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
Harassment can happen:
- Face to face
- By letter
- By email
- By phone
- By social media
Employer top tips:
For an employer, bullying and harassment in your workplace creates at unhappy environment which results in an unproductive workforce effecting work being done, higher staff turnover, absences, bad reputation and may eventually involve time and money being spent legal cases.
Bullying and harassment may not always be obvious to senior managers and can happen without an employer knowing. It is important for an employer to being fully aware of behaviours within their work place to avoid potential claims and be proactive if any complaints arise. It is very important that your make your staff aware of their options when dealing with harassment.
We are able to assist by drafting Anti-Bullying and Harassment policies for your workplace, which will make clear to employers what behaviours are acceptable and what is unacceptable.
We understand that having to experience harassment can be distressing and you are not always confident enough to complain. It may be that your harasser is your manager. However, this is not something you have to deal with as part of your job. Your employer has a duty of care to protect your welfare and if you bring a complaint of harassment forward they are obliged to take action.
What can you do?
Unfortunately, many employees who are victims to such harassment feel they have no choice but to leave their roles, but we are here to inform you of the options available to you and your legal rights in order to take action if necessary.
- We would advise to try and resolve this informally if it is safe to do so.
- We can help you to raise a grievance with your employer
- We can assist you in your resignation (and a possible constructive dismissal claim.
- We can assist you in negotiating a settlement agreement
We encourage you to contact us if you need any help with the above and we can support you through this difficult time.
Gender reassignment discrimination
Gender reassignment is one of the protected characteristics under the Equality Act.
A person is protected by the Act if they are “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. Furthermore, whilst being transgender or transexual is not a disability, where an individual has been diagnosed as having gender dysphoria or gender identity disorder, they may also be protected under the disability discrimination
It is unlawful to discriminate directly by treating a job applicant or employee less favourably than others because of gender reassignment, or discriminate indirectly by applying a provision, criterion or practice (PCP) that disadvantages transsexual job applicants or employees without objective justification.
It also unlawful to treat an employee less favourably in relation to absences from work because of gender reassignment.
Marriage or Civil Partnership Discrimination
Marriage and Civil Partnership is one of the protected characteristics under the Equality Act, alongside age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
It is unlawful for an employer to be discriminatory because you are either married or in a civil partnership; it does not apply if you are engaged to be married. Acas has provided some guidance on marriage discrimination. http://www.acas.org.uk/media/pdf/b/0/Marriage_and_Civil_Partnership_Guide_Nov.pdf
It seems that the protection relates to your marital status, and not because you may be married to a particular person, although there is conflicting case law on this point.
You cannot be subject to direct (for example asking a job interviewee whether they are married) or indirect discrimination. An example of indirect discrimination may be where a company tradition is to attend a single’s resort every year; this might be inappropriate for a person who is married and they may not attend the resort, which would mean that they would miss out on this perk.
Interestingly, it is not legally possible to be harassed for marriage and civil partnership status. However, a married person or a civil partner might be able to bring a harassment claim relying on an alternative protected characteristic such as sex or sexual orientation [links].
If you feel you have been subject to any form of discrimination by virtue of your marital status, please contact us
Race is one of the nine protected characteristics under the Equality Act. As an employee, apprentice, worker or a job applicant, you are entitled not to be discriminated against because of your race.
Acas has provided a helpful guide on race discrimination. http://www.acas.org.uk/media/pdf/s/j/Race-discrim-keypoints-workplace.pdf
Race is defined as including colour, nationality, ethnic or national origins. It is possible to fall within more than one racial group, for example “Black Britons” would encompass those who are black and who are British citizens.
Direct discrimination occurs where you are treated less favourably because of your race. Indirect discrimination occurs where, due to a particular racial group which are you are a part of, a rule or practice of your employer puts you at a particular disadvantage, even though it applies to everyone equally. An example might be if a dress code bans people from wearing their hair in cornrows; this would be indirectly discriminatory against those of African-Caribbean ethnicity who, for reasons based on their culture and ethnicity, regard the cutting of their hair to be wrong and keep it in cornrows.
Racial segregation is also expressly prohibited by the Equality Act, but the segregation must be deliberate, rather than inadvertently. Acas provides the example of a fictional British marketing company which employs predominantly British staff. It recruits Polish nationals and seats them in a separate room nicknamed ‘Little Poland’. The company argues that they have an unofficial policy of seating the Polish staff separately from British staff so that they can speak amongst themselves in their native language without disturbing the staff who speak English. This is segregation, as the company has a deliberate policy of separating staff because of race.
Religion and belief discrimination
You are entitled not to be discriminated in the workplace against because of your religion or belief.
According to the ACAS website, you are protected by reason of religion or belief because you have a religious faith or a philosophical belief, as well as because you don’t. A philosophical belief must meet certain conditions including being a weighty and substantial aspect of human life, worthy of respect in a democratic society and not conflicting with the fundamental rights of others.
No one religion or branch of a religion overrides another – so, for example, an employee is protected against discrimination by someone of another religion, or of the same religion or of a different branch or practice of their religion.
There are three main areas where discrimination in the workplace can occur:
- Recruitment – The hiring process
- Taking time off – booking holidays for religious reasons
- Dress code and appearance – E.g. wearing a headscarf or a cross necklace
From an employer’s perspective, you should also ensure that your working environment is as inclusive as possible. You should remember that an employee might choose not to partake in certain duties (such as handling alcohol) because it is against their beliefs. Employers also should not ban talking about religion or belief at work.
As for fasting, you as an employer don’t have to provide meals for your staff but because Ramadan for example, consists of early breakfasts and late dinners, this can have an impact on how someone works throughout the day. It might be beneficial to change your employees’ hours so and days to make their day more productive. This also includes breaks. They might not need a whole hour lunch but allocated breaks for the number of hours they are doing is necessary.
With this in mind, if you have evening or night shift workers, are you able to provide them a place to have their meals? This can be anything from a comfortable space to eat to a meal organised by your team. If you would like to read more about what we are doing for our employees during Ramadan, click here to read out blog.
You may have been subject to sex discrimination if your employer has treated you differently because of your gender. Many people associate this with discrimination against women, however, it is the unfair treatment of women and men. This can be either your sex, or your perceived sex.
An equal pay claim is expressly different from a sex discrimination claim (which might relate to discrimination in recruitment, training, promotion or dismissal). An equal pay claim is claim that you are being paid less than another (for example) man in your workplace, for equal work.
An example of sex discrimination in the workplace:
An employer could have changed the working hours so that the finish time is 5pm instead of 3pm. A female employer who usually picks up her children after finishing work at 3pm may be being indirectly discriminated against if she can no longer fulfil her caring duties.
With the #MeToo movement, the prevalence of sexual harassment in the workplace has been exposed.
Sex harassment is where you are subject to unwanted conduct related to sex; and this has the purpose or effect of either violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for you. For example, where male workmates place tools on a high shelf to make them hard to reach by a female engineer; or refuse to help a female engineer to lift heavy objects when they would normally help a male engineer.
Sexual harassment is where you are subject to unwanted conduct of a sexual nature which has the purpose or effect of either violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.
If you have been subjected to sex discrimination, or have an equal pay claim, or if you have been subject to harassment due to you sexual or harassment of sexual nature, Thrive will be happy to assist you.
What is a disability?
The definition of disability is different under the Equality Act. It doesn’t mean you have to be ‘disabled’ like most people understand and associate with a blue badge.
To be legally disabled under the Act you must have a mental or physical impairment that has a “substantial” and “long-term” negative effect on your ability to do normal day to day activities. This therefore covers most “invisible” disabilities, such as autism spectrum disorder, dyslexia, ADHD, OCD, PTSD, dyspraxia, diabetes, epilepsy and depression and other mental health condition.
In order to assemble a claim that you might have been discriminated against because of your disability, your employer must have knowledge of that disability.
A common claim for disability discrimination is “discrimination arising from a disability”, whereby an employer treats an employee unfavourably because something arising in consequence of that employee’s disability and they cannot show that it is a proportionate means of achieving a legitimate aim.
Examples include where an employer does not provide for an employees’ need for more guidance, a restricted diet, regular rest breaks or toilet breaks, slower typing speed, need to attend hospitals, need for quieter working, etc.
An employer must make changes within the workplace if you are disabled or become disabled to ensure that you are not at a disadvantage when compared other employees because of your mental or physical disability.
An example of a reasonable adjustment for physical disability would be if an employee used a wheelchair and the workplace required you to use stairs, the employer would make a reasonable adjustment by implementing a ramp for this person.
Some examples of a reasonable adjustment for mental disability would be flexible working, decreased workload or a quiet space for them to use.
If employer has failed to make reasonable adjustments for you and you come under the definition of disabled, then you could have grounds for a claim and could contact Thrive and we would be happy to assist you.
This page is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions