Discrimination at Work

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.

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

For urgent advice on issues related to discrimination in your workplace, contact one of our experienced employment law experts today on 0800 141 3917.

 

 

What is discrimination at work?

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

Discrimination occurs when a person is unable to enjoy his or her human rights or other legal rights on an equal basis with others because of an unjustified distinction made in policy, law or treatment.

As an employer, you need to be proactive in preventing discrimination if you want to stay on the right side of the law.

Discrimination laws

In the UK, while there's no discrimination at work act, the 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 beliefs.

7. Sex.

8. Sexual orientation.

9. Race.

It is against the law for any person to be treated unfairly or given prejudicial treatment because of one of these protected characteristics. When the government introduced the Equality Act in 2010, it brought together over 116 pieces of legislation into one single Act, so any unlawful treatment (discrimination, harassment or victimisation) relating to one of the Equality Act protected characteristics is covered by this area of employment law.

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 daily discrimination an employee may experience.

 

Types of discrimination at work

When discrimination occurs, it's classed into one of four categories, direct or indirect discrimination, harassment or victimisation.

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:

1. There's a policy in place that applies to all employees (or a group of employees).

2. The policy puts a group of staff members with a protected characteristic at a disadvantage compared to those without it.

3. They are (or will be) at a disadvantage because of the policy or business practice.

4. You can't provide a good enough business reason for applying said policy despite the level of disadvantage to those with a protected characteristic.

Harassment, where an employee is made to feel shamed, upset, intimidated, or violated by one or more of their colleagues. Common examples of workplace harassment include spreading rumours, excluding someone from group activities, or offensive behaviour such as, insults, jokes and teasing.

Victimisation is when an employee is treated unfairly because they have made a complaint, are believed to have made a complaint, or helped another employee to make a complaint about being treated unfair or prejudicial treatment.

Discrimination can take many forms. We've highlighted some of the most common types and provided some discrimination examples, here:

1. Age discrimination: An elderly employee is passed over for a promotion despite being the most qualified applicant, as the hiring manager thinks they're close to retirement and won't stay with the company.

2. National origin or race discrimination: The workplace dress code requires all employees to be clean shaven. This is indirect discrimination against employees who keep a beard for religious reasons.

3. Gender discrimination: Misgendering or mispronouncing by purposefully using the wrong gender identity or pronouns to address someone.

4. Disability discrimination: An employee with a hearing impairment is verbally abused in an open plan office about their impairment.

 

Difference between prejudice and discrimination

Although similar, there's a difference between prejudice and discrimination. So what does discrimination mean, and how is prejudice different?

1. Discrimination is an action or behaviour, usually negative directed towards specific social groups (race, religion, sex, social class etc).

2. Prejudice, on the other hand, is an unjustified, groundless or incorrect attitude towards a person or group of people. In most cases, these attitudes are often negative and based on a person's social group.

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's 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:

1. Any monies lost because of the discrimination (includes losses up to when the employee is likely to get a new job).

2. Emotional hurt or distress caused by discrimination.

3. Personal injury (for instance, anxiety or depression) or physical injury (such as broken or sprained bones) caused by discrimination.

4. 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 £9,100).

2. Middle band (£9,100 to £27,400).

3. Higher band (£27,300 to £45,600).

 

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.

Discrimination at the workplace will dishearten and demoralize your employees and employees who face discrimination will ultimately quit the organization and look for employment elsewhere. Recent research by TotalJobs has found that around 36% of transgender employees face harassment and/or are at risk of being treated unfairly, and therefore have quit their job due to transphobic discrimination. 

This could have knock on effects in terms of the effects of discrimination on employees and their output as 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 could include the money and time spent dealing with an ongoing battle with 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 and workers, 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 everyone from offensive or harmful behaviour.

In this document, you'll include information on:

1. What classes as discrimination.

2. The actions you'll take to prevent discrimination.

3. The process of reporting instances of discrimination.

4. 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:

1. Educate all employees about discrimination.

2. Encourage staff members to respect their differences.

3. Train managers to identify and respond to claims of discrimination in the workplace.

4. 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:

1. Verbal warning.

2. Formal written warning.

3. Formal disciplinary meeting.

4. Suspension or loss of privileges.

5. 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:

1. Terms and conditions.

2. Pay and benefits.

3. Promotion and transfer.

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

1. Religious organisations recruiting members of their own faith.

2. Charitable organisations for women hiring only women.

3. 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 are 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 or sex characteristics, 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 on discrimination with Croner

As an employer, you have a duty of care to protect your workers from discrimination and promote a work environment that focuses on the well being of your employees. And whether you know it's happening or not, you can be liable if the victim brings forward a claim.

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

• Perceptive Discrimination - An HR Guide

• How to Deal With Employee Victimisation

• Direct Discrimination in the Workplace