While the term ‘discrimination’ is frequently used in everyday language to refer to being treated unfairly for a specific reason, unlawful discrimination occurs when less favorable or unfair treatment is based on specific characteristics, legally referred to as ‘protected characteristics.’ The UK has nine protected characteristics, as defined by the 2010 Equality Act.
There is no minimum period of service requirement for workers to bring an unlawful discrimination claim. For employers, this means that a claim for discrimination can be made in connection with a job advertisement, during employment, up to and including job references for former employees.
In this human resources article, we will discuss protected characteristics and the four major types of discrimination in order to help you as an employer better understand how to prevent discrimination in the first place. Additionally, we will discuss when discrimination is legal.
The UK has nine protected characteristics, as defined in the 2010 Equality Act. These include the following:
Re-assignment of gender
Marriage and civil union
Pregnancy and childbirth
Religion or conviction
Employers and employees alike may be held liable for acts of discrimination committed in the course of employment. This means that a claim for discrimination can be brought against the employer (as an organization), but also against individual employees.
Employers can occasionally be held liable for their employees’ actions, even if the employer did not intend to discriminate against anyone. This is referred to as vicarious liability. Employers may avoid vicarious liability if they can demonstrate they took all reasonable steps to avoid discrimination in the first place.
Due to the possibility of claiming for ‘injury to feelings,’ claims for discrimination are technically limitless in terms of the amount a judge can award. This type of award is almost always made in the event of a successful discrimination claim. Although the amount is not limited, it is typically determined using ‘Vento’ bandings. There is a lower, a middle, and an upper band that indicate the amount that should be awarded based on the seriousness of the offense.
The Equality Act defines four distinct types of discrimination:
Discrimination on an explicit basis
Discrimination in an indirect manner
Direct discrimination comes in three distinct forms.
Direct discrimination occurs when an individual is treated less favorably as a result of the following:
They possess a protected characteristic. This is a classic case of direct discrimination. It is the only form of direct discrimination that is permissible under the law, but only if it is ‘objectively justifiable.’
A protected characteristic that someone who is associated with possesses (such as a member of their family or a colleague). This is blatant associational discrimination.
They are believed to possess a protected characteristic, regardless of whether the perception is accurate. This is a case of perception-based discrimination.
Although direct discrimination is typically motivated by a deliberate act or exclusion, it does not have to be. This means that a claim may succeed even if discrimination occurred unintentionally.
Indirect discrimination is typically more subtle than direct discrimination and is frequently unintentional.
In general, it occurs when a rule or plan is implemented that applies to everyone and is not discriminatory in and of itself, but may disadvantage those who possess a protected characteristic.
In law, this is the case when a ‘provision, criterion, or practice’ (PCP) encompasses all four of these elements:
The term ‘PCP’ is used synonymously to refer to a group of people, only a subset of whom share the protected characteristic.
It has (or will have) the effect of putting those who share the protected characteristic at a distinct disadvantage in comparison to those who do not.
It places, or would place, the individual at a disadvantage.
The employer is unable to justify it objectively.
The Equality Act makes no definition of a ‘PCP’. According to Acas, ‘the term is most likely to refer to an employer’s policies, procedures, requirements, rules, and arrangements, whether written or not.’
Although all four elements must be present for a claim to be successful, it is the employee’s (or’claimant’) responsibility to establish point 2 and to demonstrate that point 3 applies to them personally.
Harassment is defined as “unwanted conduct” that is motivated by a protected characteristic. It must be with the intent or effect of infringing on a person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that person.
Harassment can take the form of bullying, nicknames, gossip, and intrusive or inappropriate questions and comments. Excluding someone (by declining to invite them to meetings or events) may also be considered. To assert that the behavior was not intended to offend or was ‘banter’ is not a defense. When it comes to harassment, the victim’s perspective is more important than the harasser’s. Someone who witnesses this type of behavior may claim harassment if it has a detrimental effect on their professional dignity, even if they do not share the harassed colleague’s characteristic.
Victimisation occurs when an employee suffers a ‘disadvantage’ as a result of doing (or being suspected of doing) one of the following in good faith:
Make a discrimination allegation
Sustain a discrimination complaint
Provide evidence in support of a discrimination complaint
Make a complaint about inequality or discrimination
Carry out any other act for the purposes of (or in connection with) the Equality Act, such as bringing a discrimination claim in an employment tribunal.
A ‘disadvantage’ is a loss, disadvantage, damage, or harm. For instance, being branded a ‘troublemaker,’ being excluded and ignored, being denied training or promotion, or being laid off.
When is discrimination permissible? Ordinary direct and indirect discrimination may be legal in limited circumstances if the employer can objectively justify it (the law refers to this as a ‘proportionate means of achieving a legitimate goal’).
The employer must establish that the less favorable treatment or PCP was necessary and appropriate (this must be objective and usually involves a business need). What constitutes ‘proportionate’ will vary by case and may also depend on the business’s size and resources. For example, a large employer with a large workforce may find it easier to approve flexible work requests from women with childcare responsibilities than a small firm with a few employees may.