Discrimination in the workplace is never acceptable and 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 characteristic, 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, bullying a person in the workplace because of their age is unlawful. If someone is provided with an unfavourable reference because they had alleged 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 the 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.
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 a disadvantage.
A common example of indirect discrimination is 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.
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.
Under this heading protection is extended to cover unwanted conduct of a sexual nature, related to gender reassignment, and also less favourable because an individual has rejected such conduct.
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.
Pregnancy and Maternity
Although it is not possible to bring a claim under the heads of indirect discrimination and harassment in relation to someone with these protected characteristics, they are instead entitled to bring a claim in respect of any unfavourable treatment because of pregnancy, pregnancy-related illness, being on compulsory maternity leave or seeking to exercise any statutory maternity leave.
An employer is required to undertake a health and safety assessment of the risks to the health and safety that its workers are exposed to whilst they are at work. If the workforce contains people of child-bearing age, as part of that general assessment consideration should be made to any work risks that could affect the health and safety of new or expectant mother and/or the baby. If the risk can be removed by altering the employee’s conditions of work including work hours, and if it is reasonable to do so, the employer should do so. If that adjustment cannot be made, the employer should suspend the employee for as long as necessary to avoid the risk. Employers are also obliged to provide suitable facilities for pregnant and nursing mothers to rest. Toilets and sick rooms should not be considered suitable due to the hygiene/contamination risk. Failure to comply with these legal obligations may give rise to a claim of unfavourable treatment.
Marriage and Civil Partnership
Besides claims under direct, indirect, harassment and victimisation, disabled people can also claim discrimination arising from disability and failure by the employer to make reasonable adjustments.
Discrimination arising from disability
Occurs when an employee is treated unfavourably because of something arising in consequence of their disability e.g. if an employee is dismissed because of their absence arising from their disability.
Failure to make reasonable adjustments
arises when there is a working condition that puts a disabled person at a substantial disadvantage compared to those who aren’t disabled, and the employer fails to take reasonable steps to avoid that disadvantage.
Examples of adjustments include adjustments to sickness absence triggers, providing disability access such as a ramp, or auxiliary aids such as a hearing aid compatible telephone, large print materials, braille documents etc. The employee is not required to contribute to the cost of the adjustment which means that the reasonableness of making the adjustment is to be determined by the employer’s resources.
It not possible to claim harassment in respect of these protected characteristics but instead it may be possible to bring a claim under direct discrimination or a claim related to sexual orientation.
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 on disciplinary and grievance procedures, 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 unreasonable 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 relation to indirect discrimination, discrimination arising from disability and direct discrimination because of age, the law does allow circumstances when the employer is permitted to lawfully discriminate if there is an objective justification to do so. Examples of objective justification include for health and safety reasons and the requirements of a business. Economic reasons alone can never be used to justified discrimination.
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:
- The strength of your legal position, which is useful to know when negotiating with your employer.
- Evidence you may need to gather.
- Time limits
- 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.
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.
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. For free initial advice call us today on 0151 659 1070 or get in touch by completing our online enquiry form.