In this article
Workplace discrimination can unsettle staff, create toxic work environments and negatively impact a business and its employees. It’s therefore vitally important for businesses and staff to understand and adhere to strict policies in an attempt to mitigate or handle discrimination in the workplace. This interactive article will provide an overview of the basics of workplace discrimination from both perspectives.
If you have a case you think we can help with, contact our team via 0203 007 5500, or email@example.com.
What is workplace discrimination?
Workplace discrimination refers to the differential treatment of a person, or group of people, because of their race, gender identity, sexual orientation, or any other legally protected characteristic. This treatment can occur at the hands of colleagues or superiors and can be both positive and negative.
Workplace discrimination can take many forms, including harassment, biased hiring schemes, promotion decisions and pay disparity. It can also have serious consequences for businesses and staff, often resulting in toxic work environments, reduced morale, and productivity declines.
It’s therefore vital for businesses to introduce and adhere to strict policy and educate staff to prevent discrimination from occurring and protect staff wellbeing.
This article will provide a comprehensive overview of discrimination within the workplace, allowing you to read certain sections as either an employer or an employee. It will cover:
- The relevant legislation
- Different forms of discrimination
- Lawful discrimination
- Dealing with discrimination
- Consequences of discrimination
- A recent case
The Equality Act 2010.
The Equality Act 2010 provides the legal framework to protect employees from discrimination within the workplace. It replaced scattered acts with comprehensive legislation for identifying, reducing, and reporting discrimination. Specifically, the act merged the:
- Equal Pay Act 1970
- Sex Discrimination Act 1975
- Race Relations Act 1976
- Disability Discrimination Act 1995
- Employment Equality (Religion or Belief) Regulations 2003
- Employment Equality (Sexual Orientation) Regulations 2003
- Employment Equality (Age) Regulations 2006
- Equality Act, Part 2 2006
- Equality Act (Sexual Orientation) Regulations 2007
What are the protected characteristics under the Equality Act 2010?
In total there are 9 characteristics protected by the Equality Act:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race (including nationality, ethnic and national origin)
- Religious beliefs
- Sexual orientation
Types of workplace discrimination.
Direct discrimination refers to the differential treatment of someone with a protected characteristic. For example, because of their age, race, or sexual orientation. This can also occur by:
Association: Differential treatment of an individual because of who they associate with, who shares a protected characteristic. For example, an individual suffers from discrimination by association when colleagues at work treat them differently because they are friends with a disabled person.
Perception: Differential treatment of an individual due to the perception they share a protected characteristic. For example, if an employer refuses to promote an employee because they believe the employee is gay.
Indirect discrimination occurs when a policy that applies to all employees disadvantages one person, or group of people, because of a protected characteristic. This can often be unintentional and can be complex to prove in court. To establish an indirect discrimination claim, an employee must provide evidence:
- There is a policy applied equally to all employees
- That the policy specifically disadvantages people with a protected characteristic
- For how this policy disadvantages, or will disadvantage, an individual who shares this protected characteristic, in comparison to other employees
- That the organisation cannot provide justification for the policy despite the disadvantage(s) posed
If an organisation can provide adequate justification for the introduction of a policy, it is no longer considered indirect discrimination and is instead objective justification.
For example, the introduction of a strict dress code that requires men to wear suits and women to wear dresses may result in a transgender employee feeling uncomfortable if the employer forces them to wear clothing of a gender they do not identify with. Unless the employer can provide adequate justification for the requirement of this dress code, this could be considered indirect discrimination.
Harassment refers to any offensive or harmful behaviour related to a protected characteristic that humiliates, intimidates, or excludes an individual or group. This can be physical or verbal.
Common forms of harassment include:
- Unpleasant nicknames or derogatory slurs
- Gossiping or spreading rumours
- Asking inappropriate questions
- Unwanted physical contact
- Intimidating behaviour or gestures
Victimisation refers to any offensive behaviour or negative treatment directed at an individual because they:
- Made a complaint about workplace discrimination
- Suggested they would make a complaint
- Agreed to give evidence about a complaint
Victimisation can exist in many forms, for example:
- Denial of a promotion
- Subjected to unjustified disciplinary proceedings
- Criticism or exclusion by fellow employees
It’s common for an employee to file a victimisation claim before filing a discrimination case as they feel their boss is treating them unfairly under the belief they may make a complaint.
For example, an employee may feel their superior is discriminating against them or a colleague due to their age. That employee then speaks to other colleagues and intimates that they would be willing to file or give evidence in a discrimination case if the behaviour doesn’t stop. After hearing about this, their superior then refuses that employee a promotion.
Would you like to read this section as:
Dealing with workplace discrimination:
As an employee
As an employee, dealing with discrimination can be incredibly challenging and it can be intimidating to speak out or report it.
You may fear reprisals, such as being demoted or fired, or feel uncertain about the process, how to report discrimination or who to turn to. You may also worry about being ostracised or isolated by co-workers or feel powerless to address the discrimination you are experiencing.
If you are in this position, there are steps you can take.
How do you report workplace discrimination?
If you have suffered from an incident, or repeated incidents, of discrimination within the workplace, there are several steps you can take:
1. It’s important to document the incident(s). For example, making notes of any comments or actions, reaching out to potential witness’, or recording any other relevant information.
2. You may then wish to make an informal complaint against the person responsible with a supervisor or manager. At this stage you can present any evidence you may have and warn of a formal complaint if the issue is not resolved.
3. If the discriminatory behaviour originates from your supervisor or manager, the behaviour continues after the informal complaint, or you do not wish to attempt to resolve the issue informally, you can file a formal complaint or take the case to ACAS and then the Employment Tribunal. Seeking legal advice prior to acting, will place you in a better position for your claim.
Consequences of workplace discrimination
Suffering from discrimination can be incredibly distressing and may result in stress, depression, illness, or loss of work for which an employee can claim damages.
As an employer
If an employee feels they have been or are being discriminated against, they may raise a complaint formally or informally. If they first raise an informal complaint, this is a good opportunity to prevent litigation or formal proceedings. This is more likely to happen if you have good procedures in place for handling complaints and allow the employee to feel comfortable bringing forward an allegation.
If an employee brings forward an informal complaint, you should:
- Discuss the situation in depth and keep notes of any conversations had
- Make it clear that you will investigate the matter
- Ensure the employee knows that, if necessary, disciplinary action will be taken
- Consider equality training for yourself or other employees
If you cannot resolve a situation informally, as an employer you must ensure any formal complaint or grievance procedures are communicated to employees so that they know how to raise such issues. Exactly what a company’s complaint policy includes will differ between businesses and is unlikely to follow a generic structure.
If an employee has filed a claim in the Employment Tribunal and you are facing a formal discrimination case this can be incredibly challenging and we’d recommend seeking legal advice. If you have a case you think we can help with, contact our team on 0203 007 5500 or firstname.lastname@example.org.
Consequences of a workplace discrimination case
A discrimination case can have severe impacts on a business. For example, it may result in:
- Financial costs, both in terms of legal fees and any settlements or damages
- Damage to reputation, particularly if the case receives media attention, which can lead to a loss of customers and a decline in business
- Decreased morale among employees, which can affect productivity and overall job performance
- Difficulty retaining and attracting employees
- Legal consequences, such as fines or sanctions
When is discrimination in the workplace lawful?
There are exceptions under the Equality Act if an employer can provide adequate justification for the discrimination.
For example, the fire service may indirectly discriminate against older applicants due to the physical requirements of the role. Fire fighting is a job that requires great physical capability and therefore canditates/employees must pass a variety of tests to ensure they are fit enough. This would qualify as a legitimate aim, meaning this type of discrimination would be justified and lawful.
What about positive discrimination?
Positive discrimination refers to the automatic favouring, without consideration of merit, to individuals who possess a protected characteristic. Otherwise known as ‘quota hiring’. Under the Equality Act this is generally prohibited, however, there are some exceptions. For example, if there is a strict and justified requirement for the characteristic, such as requiring all female staff within a women’s refuge.
Notable workplace discrimination case.
De Souza vs Primark 2018
Miss De Souza worked as a shop assistant for clothing chain Primark. During her application process, De Souza informed Primark she was transgender and that her preferred name was Alexandra, rather than her birth name Alexander. Primark agreed that De Souza could have whatever name she liked on her name badge, but their payment system required the use of her birth name.
However, following an error, Alexander appeared on both systems and this name was provided to supervisors. De Souza suffered various incidents of discrimination for her gender identity which eventually led to her resignation. Following a formal complaint, the department manager dismissed De Souza’s claim resulting in her taking the case to the Employment Tribunal who awarded her a large compensation package and ordered Primark to create and enforce transgender policy and equality training.
Read more about this case here.
How can Britton and Time Solicitors help?
We know how stressful and costly workplace discrimination claims can be. That’s why our initial consultations with our employment solicitors offer you:
- Unlimited time to go through the details of your case and ask any questions you may have
- An overview of your legal standpoint and your available options
- A precise time and fee estimate for your case
To arrange your initial consultation with one of our solicitors, simply call us on 0203 007 5500.