This article will focus on the types of discrimination and the types of protected characteristics as defined under the Equality Act. We will also hopefully dispel a few commonly held myths along the way.
What is the Equality Act?
The Equality Act was introduced in 2010 and replaced previous legislation such as the Race Relations Act and the Sex discrimination Act. The aim was to bring all legislation under one act and aimed to make things more straight forward for employers and focuses on the types of behaviours which are discriminatory and the characteristics which are protected.
(The Equality Act does not only apply to employment but for the purposes of this article we will be focusing on workplace examples).
What is a protected characteristic?
It is unlawful to discriminate against anyone in the UK for any of the following reasons:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion and belief
- Sexual orientation.
What are the different types of discrimination?
- Direct discrimination. This the type of discrimination people are most familiar with as it tends to be the most obvious. It is treating someone less favourably because of a protected characteristic. For example, it would include dismissing someone from their job because they are pregnant or not offering someone an interview because of their race.
- Direct discrimination by perception is where someone is treated less favourably because it is thought they have a protected characteristic. For example, not offering someone a promotion because you think they are gay.
- Direct discrimination by association is treating someone less favourably because they are associated with someone who has a protected characteristic. For example, withdrawing an offer of employment upon discovering the candidate has a disabled child out of fears he/she may need a lot of time off.
- Indirect Discrimination. This is something which catches employers unaware because whist direct discrimination is very deliberate, indirect discrimination may not have such a sinister motive. It is where a workplace, practice or policy is implemented, which has a negative or less favourable impact on workers who have a protected characteristic, even though the practice or policy applies equally to all employees. For example, you may have a sickness policy which states that on three episodes of sickness the disciplinary procedure is triggered. An employee who has a disability and whose absences are linked to that disability, will be disproportionately affected by this. Read our absence management guides (read more here).
- Harassment. This is unwanted behaviour related to a protected characteristic which has the purpose or effect of violating someone’s dignity or which creates a hostile, degrading, humiliating or offensive environment. Check out our article for more details, examples and a practical guide (read more here).
- Victimisation. This where someone is treated less favourably because they have complained about discrimination or harassment or have supported someone else who has made a complaint. For example, an employee has acted as a witness to support a colleague who has taken tribunal action against their employer alleging discrimination and are then unjustly passed over for promotion.
FACT OR FICTION?
- ‘Race’ only refers to someone’s skin colour.
Race also includes nationality and ethnic/national origin
- Some forms of discrimination are justifiable if the employer has good business reasons?
FACT…well sort of
In rare circumstances employers may be able to justify behaviour which may at first hand look like direct or indirect discrimination if they can show it is proportionate and achieves a legitimate aim.
For example, some health and safety restrictions may be placed on construction firms employing persons under the age of 18 on particularly hazardous sites or a women’s refuge may be legitimately able to employ females only.
However- never assume you have justification, you will have to prove that it is genuine and that there are no other means of meeting your aims without discriminating. It is essential that you seek advice.
- You don’t have to be an employee to bring a claim of discrimination.
If your recruitment practices are discriminatory you can face a claim. That does not just apply to shortlisting or interview stages, but it can apply from the moment you place the job advert and where!
For example, you are a church organisation who requires a cleaner. You advertise only in your church magazine and state that the person must be of the same faith as the organisation.
This is discriminatory because to clean the premises you do not have to be of any religion, so it is not essential to the role and restricting where the role is advertised only reinforces the view that you are excluding members of other faiths.
REMEMBER! DISCRIMINATION CLAIMS ARE UNCAPPED. They are costly and can be very damaging to your reputation as they may be picked up by local or even national press.
You can’t afford to get it wrong- seek advice from our experts for practical and bespoke advice.