Discrimination in the workplace is never acceptable and, moreover, may in certain instances be unlawful. If you believe you are experiencing discrimination at work, our dedicated employment team can guide you through your options for dealing with this. One thing is certain: you should never suffer in silence.
The legal definition of unlawful discrimination
Discriminating against a person is unlawful if it is in connection with a ‘protected characteristic’. These characteristics are set out in the Equality Act 2010:
- Pregnancy and maternity
- Sexual orientation
- Gender reassignment
- Marriage and civil partnership
Discrimination at work may be related to:
- Employment terms and conditions
- Pay and benefits
- Promotion and transfer opportunities
The important thing to note is that anyone with or connected to a protected characteristics is protected in law. and in the context of employment a person is protected from unlawful discrimination from the initial stage of job application to the end of employment.
For example, a job candidate whose application is rejected because they have an Asian sounding name is subject to unlawful discrimination and is entitled to legal redress. Likewise bullying a person in the workplace because of their age is also unlawful. If someone is provided with an unfavourable reference because they had alleged an unlawful discrimination whilst in work, they too are entitled to legal redress even though they have left the employment.
What are the different types of discrimination?
Unlawful discrimination in the workplace can occur in different forms:
This is the most obvious form of discrimination and occurs when an employer treats an employee less favourably because of a protected characteristic.
Although in most instances the person alleging this type of discrimination is the one with the protected characteristic, it does not have to be case. Direct discrimination can also occur when an employee is treated less favourably because they are perceived to have a protected characteristic even if they do not in fact possess it, or because they associate with someone who has a protected characteristic. However please note that discrimination by association and perception does not apply to marriage and civil partnerships and pregnancy and maternity.
Indirect discrimination takes place when an employer has implemented a provision, criterion or practice (PCP), i.e. a working condition, which appears to apply neutrally to all employees, but in practice disadvantages a group with a protected characteristic and the complainant is of that protected characteristic and is or would be put at that disadvantage.
A common example of indirect discrimination being the requirement for all employees to work full time. This is a policy typically applied equally to all employees, however as women are more likely to be the primary carers of children, it is more difficult for them to work full time and as such they are put at a disadvantage.
However, indirect discrimination is not unlawful if the employer can demonstrate that the PCP is a proportionate means of achieving a legitimate aim. And also to note that indirect discrimination does not apply to pregnancy or maternity.
Victimisation occurs when a person is treated less favourably because they have carried out a protected act. Examples of a protected act include alleging that the employer has acted in a discriminatory manner, has brought legal proceedings under the Equality Act, or given evidence or information regarding such proceedings.
Harassment is unwanted conduct related to a protected characteristic which has the purpose or the effect of creating an intimidating, hostile or degrading environment. This could be abusive comments or jokes, graffiti or insulting gestures.
While under this heading protection is extended under the Equality Act to cover unwanted conduct of a sexual nature or unwanted conducted that is related to gender reassignment, harassment claims cannot be brought in respect of marriage and civil partnership, and pregnancy and maternity.
Challenging unlawful discrimination
Most complaints of discrimination are handled internally first, normally by your manager, supported by a HR function if one is available. The ACAS Code of Practice – Discipline & Grievance In The Workplace, sets out the basic procedural steps that should be incorporated into any workplace disciplinary and grievance procedures. The purpose behind this Code is to ensure that basic standards of fairness are adhered to within these procedures. Although failure to follow the Code does not give rise to a legal claim in of itself, if the matter ends up before the Employment Tribunal, the Tribunal can adjust any award by up to 25% for an unreasonably failure to comply with the provisions of the Code.
If the internal procedures are unsuccessful, the next possible stage is ACAS early conciliation (ACAS being the public body tasked with helping employers and employees on all aspects of workplace relations). The purpose behind ACAS early conciliation is to help the parties resolve their dispute without recourse to legal proceedings. The early conciliation can be triggered by either you or the employer, however once early conciliation has commenced, there is no obligation on either party to participate in the process. If no resolution is reached at that stage, you then have the option of taking your case before an employment tribunal.
It is important to note that employment tribunal proceedings can be brought even while you are still employed.
In all but a few exceptions, it is a legal requirement for ACAS early conciliation to have been triggered before submitting a Tribunal claim. The time limit to trigger early conciliation is three months less one day from the date of the last act of discrimination. As the employee you should take it upon yourself to ensure that early conciliation is duly triggered. If early conciliation is unsuccessful, the period of time it takes is used to calculate the time limit to bring your employment tribunal claim.
However, please note that what is considered the last act of discrimination can be a complicated business. Also, if the matter relates to equal pay the time limit for early conciliation is six months after the employment relationship has ended but there are exceptions to that also.
When should I instruct a solicitor?
You can instruct a solicitor at any point in this process, even at the very early stages such as:
- Advise you on the strength of your legal position, which is useful to know when negotiating with your employer.
- Advise you on what evidence you may need to gather.
- Advise you on time limits
- Accompany you to meetings with your employer – although during internal discussions your employer can refuse to agree to this.
- Assist you with ACAS early conciliation and/or mediation.
At the later stages in the process, a solicitor can represent you at employment tribunal hearings and/or help you to negotiate a fair settlement with your employer.
Contact our Discrimination Lawyers in Liverpool, Wirral and Merseyside Today
We understand how frustrating and unfair discrimination can feel, especially when your livelihood may be at stake. Our dedicated and experienced team of Empoyment Lawyers can help you navigate this difficult time with minimal stress and confusion. Call us today on 0151 659 1070 or get in touch by completing our online enquiry form.
What about if my discrimination is not connected to a protected characteristic?
If you are being discriminated and it doesn’t appear that it is connected to a protected characteristic, your complaint may still entitle you to legal redress. Therefore it is important that you seek legal advice as soon as possible, and not suffer in silence.