Discrimination

Carol Smith

Carol Smith

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20 Jan 2020

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Individuals from different backgrounds and with a variety of life experiences make up the modern workplace. While diversity in the work environment is certainly positive, it also increases the opportunities for discrimination at work.

Despite progress in stamping out workplace discrimination, it’s still a part of the modern business world. This is in part due to various misconceptions about discrimination as well as how it applies to the workplace.

For urgent advice on issues related to discrimination in your workplace, contact one of our experienced employment law experts today on 0808 145 3380.

This piece explores discrimination at work. In it, we'll highlight the different types with examples, as well the importance of preventing discrimination.

 

What is discrimination at work?

It’s the preferential treatment of a particular group of people over another—or treating an employee unfairly because of who they are. Depending on your location, various discrimination laws are in place to protect your workforce.

 

Discrimination laws

In the UK, while there’s no discrimination at work act, the Equality Act 2010  is the main discrimination legislation that protects employees from issues relating to the following protected characteristics:

  1. Age
  2. Disability
  3. Gender reassignment
  4. Marriage or civil partnership
  5. Pregnancy and maternity
  6. Religion or belief
  7. Sex
  8. Sexual orientation
  9. Race

When the government introduced the Equality Act in 2010, it brought together over 116 pieces of legislation into one single Act.

However, identifying discrimination in the workplace when it happens is often the issue many employers fail to notice. To resolve this, the first step is to identify the various types of discrimination an employee may experience.


Types of discrimination at work

When discrimination occurs, it’s classed into one of two categories, direct or indirect discrimination.

Direct discrimination involves treating an employee worse than your other staff because they have (or you assume they have) a protected characteristic. It may also be because they’re connected with someone that has a protected characteristic.

Indirect discrimination, on the other hand, relates to policies or business practices that apply to all employees but puts those who share protected characteristics at a disadvantage. To prove indirect discrimination, employees must show that:

  • There’s a policy in place that applies to all employees (or a group of employees).
  • The policy puts a group of staff members with a protected characteristic at a disadvantage compared to those without it.
  • They’re (or will be) at a disadvantage because of the policy or business practice.
  • You can’t provide a good enough business reason for applying said policy despite the level of disadvantage to those with a protected characteristic.

There’re many forms of discrimination. We’ve highlighted some of the most common types. They include:

 

Sexual discrimination at work

A common misconception about sexual discrimination is it only relates to men discriminating against women.

This is far from the case—sex discrimination applies to men just as much as it applies to women. Similarly, it's also possible for individuals to discriminate against someone of their sexual orientation.

Direct sexual discrimination takes place when you treat an individual less favourably due to their sex.

Indirect sexual discrimination occurs when a rule, policy or procedure that applies to everyone in the workplace, regardless of his or her sex, disadvantages members of a certain sex.

An example of indirect discrimination is asking all employees to be available to work full-time, as it might disadvantage women who are more likely to have caring responsibilities.

It’s worth noting, there are instances where you can justify indirect discrimination however it’ll have to be for an extremely good reason and if required, you’ll need to prove this in court. It’s also referred to as objective justification.

Sexual harassment at work is unlawful behaviour and is gross misconduct, so you should deal with it in the appropriate manner.

 

Age discrimination at work

This is when you treat an employee differently because of their age.

Similar to sexual discrimination, age discrimination can be either direct or indirect and is a protected characteristic in the Equality Act 2010.

Direct age discrimination is when an individual receives less favourable treatment due to their age, perceived age, or the age of another person they’re associated with.

Indirect age discrimination occurs when a certain restriction that applies to all employees puts employees of a certain age at a disadvantage.

An example of this is requiring all employees to have a post-graduate degree if they want to earn a promotion. Certain age groups are less likely to have this qualification.

It’s worth noting, there’re also instances where treating an employee differently because of their age is lawful. For example, if it’s an occupational requirement or as part of your organisation’s approach to positive action. Positive action is any voluntary action taken by an organisation to address the imbalance of opportunities for a disadvantaged group (individuals with a protected characteristic).

 

Disability discrimination at work

This occurs when you treat an employee unfavourably or when they're at a disadvantage (either intentionally or unintentionally) because of a disability. Remember that you have a ‘duty’ to make reasonable adjustments to reduce the impacts of impairments.

According to the Equality Act, a disability is a physical or mental condition that has a substantial and long-term effect on an individual’s ability to carry out regular day-to-day tasks.

Like we mentioned above, it can occur in many forms. In this instance, direct discrimination may occur when you refuse to promote an employee because of their disability.

Indirect discrimination may occur during the recruitment process. For example, if you state on a job advert that all applicants must have a valid driving licence, you’re putting disabled applicants at a disadvantage, as they might not be able to drive because of their disability.

 

Pregnancy and maternity discrimination at work

The Equality Act 2010 also protects pregnant employees or those on maternity leave from discrimination.

It’s worth noting, women aren’t required to compare their treatment to their male counterpart, they just have to show their unfair treatment is as a result of pregnancy or because she wants to or has taken maternity leave.

An example of direct discrimination in this circumstance can be hiring a pregnant woman but on a lower salary or less favourable terms than other employees. Or if you refuse a pregnant employee’s request for flexible working without a valid business reason, that is also grounds for direct discrimination claims.

 

Difference between prejudice and discrimination

Although similar, there’s a difference between prejudice and discrimination.

  • Prejudice is an unjustified or a groundless attitude towards a person or group of people. In most cases, these attitudes are often negative and based on a person’s social group (race, religion, sex, etc).
  • Discrimination, on the other hand, is an action or behaviour directed towards those social groups.

While a person can show prejudice towards a social group, it doesn’t necessarily mean discrimination. An employer can show prejudice towards a group or groups of employees but not take action to discriminate against them.

 

Compensation for discrimination at work

There is no limit to what an employee may receive as compensation for discrimination. The figure varies depending on the facts and circumstances of individual cases.

While circumstances may differ, the principle used to decide on damages remains the same. The court will try as much as is reasonably possible to put the claimant back into the same position as they would have been in if the discrimination had not happened.

If a discrimination claim progresses to an employment tribunal, they can order you to pay for:

  • Any monies lost because of the discrimination (includes losses up to when the employee is likely to get a new job).
  • Emotional hurt or distressed caused by discrimination.
  • Personal injury (such as anxiety or depression) or physical injury such as broken or sprained bones) caused by discrimination.
  • Aggravated damages to the employee as a result of injury to the claimant’s feeling.

Although there’s no formal limit on the amount the court can award, the senior appeals court set out a range of awards for ‘injury to feelings’. These are separate from the compensation the employee receives for the discrimination itself. So for example, they might get £20,000 for the discrimination and an additional £25,000 as compensation injury to their feelings.

The Vento scale (derived from the Vento v Chief Constable of West Yorkshire Police case) has three tiers:

  1. Lower band (£900 to £8,800)
  2. Middle band (£8,800 to £26,300)
  3. Higher band (£26,300 to £44,000)

It’s worth noting, these figures are subject to change to reflect inflation with the most recent change made in March 2019. For the latest information on Vento bands, check out the Courts and Tribunals Judiciary website.

 

Why is it important to prevent discrimination?

Firstly, it’s your legal obligation to protect your staff from discrimination. According to the Equality Act 2010, you’re legally responsible for any acts of discrimination or harassment that occurs in the workplace.

So when you fail to fulfil your obligation, you’ll have to consider the implications it’ll have on employee productivity, engagement, retention, morale, loyalty as well as the reputation and financial repercussions it’ll have on the business.

In terms of its effects on employees and their output, unaddressed discrimination is likely to erode the engagement and morale of your workforce. This disengagement has a cost on the company, with higher rates of absenteeism and lower productivity.

The financial implications include the money and time spent battling former employees in court. You may have to pay fees for legal representation and settlement costs, which, together with the costs of declines in productivity and increases in absenteeism can lead to losses in profits.

So, now that we’ve established the importance, the next step is to learn how to identify and stop discrimination at work.

 

How to prevent discrimination at work

Preventing discrimination at work is a long and ongoing process. The first of which involves creating an anti-discrimination policy that applies to all employees, contractors, visitors, customers and stakeholders.

The purpose of this policy is to highlight your organisation’s stance on all forms of harassment and discrimination that may occur in the workplace. It should reflect your beliefs and protect your employees, customers and stakeholders from offensive or harmful behaviour.

In this document, you’ll include information on:

  • What classes as discrimination,
  • The actions you’ll take to prevent discrimination,
  • The process of reporting instances of discrimination and
  • How you’ll handle complaints of discrimination.

As well as properly enforcing this policy, you should also review and update this policy regularly to maintain its effectiveness.

Other tips for preventing discrimination in the workplace include:

  • Educate all employees about discrimination.
  • Encourage staff members to respect their differences.
  • Train managers to identify and respond to claims of discrimination in the workplace.
  • Address complaints about discrimination (and general inappropriate behaviour) in a timely manner.

It’s also important to know how to stop discrimination at work when you see it happening. You can take several disciplinary actions depending on the specific circumstance of their action. These include:

  • Verbal warning.
  • Formal written warning.
  • Formal disciplinary meeting
  • Suspension or loss of privileges
  • Pay cut.
  • Termination of contract.

 

What's equality and diversity?

All employees have equal opportunities in the workplace regardless of their protected characteristics including sex, age, race, sexual orientation or religion.

The Equality Act 2010 supports this by enforcing employment rights and responsibilities.

The law protects employees from discrimination relating to:

  • Terms and conditions.
  • Pay and benefits.
  • Promotion and transfer.

However, certain employer rights and responsibilities allow some forms of discrimination. Examples of these are:

  • Religious organisations recruiting members of their own faith.
  • Charitable organisations for women hiring only women.
  • Recruiting an individual of a certain age group to portray a character of a particular age on stage or in a TV/film production.

Such examples allow discrimination, as they’re a necessity for the role and are a proportionate means of achieving a legitimate aim, such as authenticity or privacy and dignity.

If you employ a deeply religious manager, for example, but he or she refuses to hire a new recruit due to their sexual orientation, that classes as discrimination.

This is so long as the organisation isn’t religious and they don’t have a requirement for roles with someone of the same religion. 

However, the employer’s individual belief doesn’t make them exempt from a discrimination claim.

 

Expert Support

For support with discrimination in the workplace, or any other HR or employment law issue, speak to a Croner expert on 0808 145 3380.

About the Author

Carol Smith

Carol joined Croner in 2001 as an Employment Consultant advising a wide range of clients on all aspects of Employment Law and HR practice. She demonstrates particular expertise in complex disciplinary, grievance matters and reorganisation / redundancy.

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Carol Smith

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