Discrimination at Work

Last updated: 1st April 2021

Your expert guide to the 4 types of discrimination at work for which you could successfully advance a claim.

Have you been the victim of discrimination in the workplace? If so, you are protected under the law and may qualify to advance a claim for compensation at Employment Tribunal.

In this guide from leading employment solicitor Tom Street, we will provide you with everything you need to know about discrimination at work; who is protected, types of discrimination (direct, indirect, victimisation and harassment), how to prove unlawful treatment and what to do if you feel you have a case.

You will also benefit from Tom’s interesting points to note about some discrimination cases and what to look out for.

What is discrimination at work?

Generally speaking, discrimination at work occurs when you are treated unfairly and the treatment can be linked to a protected characteristic. 

There are nine protected characteristics which are currently protected under the Equality Act 2010.

They are:

• age;
• disability;
• gender (or sex);
• pregnancy and maternity;
• race (including ethnicity and national origin);
• religion or belief;
• sexual orientation;
• gender reassignment;
• marriage or civil partnership;

If you feel as though you may have been treated unfairly due to one (or more) of the above, then you may have a discrimination claim.

Types of Discrimination

There are 4 types of discrimination (although there are different types for disability and pregnancy/maternity discrimination – see below). 

• Direct Discrimination (under s.13 Equality Act 2010);
• Indirect Discrimination (under s.19 Equality Act 2010);
• Harassment (under s.26 Equality Act 2010); and
• Victimisation (under s.27 Equality Act 2010). 

Direct Discrimination

This is where your employer treats you less favourably because of your protected characteristic. 

For example, if your employer dismissed you because you are black, then this would be clear direct race discrimination. 

Unsurprisingly, however, these types of cases are quite difficult to prove, as there will rarely be evidence of such unequivocal discrimination. 

In such circumstances, your employer would most likely deny that you were dismissed because of your race, and will say it was for another reason, for example redundancy or performance (for more information, please see the section below on how to prove discrimination in the workplace). 

In order to succeed with a direct discrimination claim, you have to have a comparator. 

What is a comparator? 

Put simply, a comparator is the person (real or hypothetical) who you are comparing your treatment to, in order that you can demonstrated that you were treated ‘less favourably’ which is the legal test of direct discrimination. 

For example, if you are dismissed because you have failed to meet sales targets, but you believe that the real reason you have been dismissed is because you are gay, it would be useful for you to have the name of a straight comparator (a straight person who does the same job as you) who has also failed to meet sales targets but who has not been dismissed.

By comparing your treatment to the treatment shown to your comparator, it should be possible to prove you were treated less favourably than him or her, meaning that you have been discriminated against on the basis of your sexual orientation.

As mentioned above, whilst you must have a comparator, they can either be real (preferable) or hypothetical. 

Indirect Discrimination

As the name suggests, this is where your employer does something which, indirectly, puts you at a disadvantage because of your protected characteristic. 

Indirect discrimination cases normally arise when your employer puts in place a policy or rule (known legally as a provision, criteria or practice – or a PCP) which, inadvertently, puts certain people at a disadvantage. 

For example, if your employer decides that it needs your part-time job done on a full time basis (the PCP), this could be indirect sex discrimination.

This is because, statistically, most part-time employees are women with childcare responsibilities, and therefore, if you can’t do the full-time role due to childcare reasons, you are being forced out of your job because you are a woman. 

Another interesting example (taken from a case that we dealt with): your employer imposes a strict attendance policy, which states that any illness absence over a certain number of days per year will result in dismissal.

You are an older member of staff who, unfortunately, has had too many days off work and you are therefore dismissed.

Statistically, older people are likely to have more sickness days off work per year (the older you get, the more likely you are to be ill). As such, this policy is potentially discriminatory on the basis of age, and your dismissal could constitute indirect discrimination. 

What constitutes a PCP is not defined and, as such, can extend to any rule or policy that your employer wants to put in place, even informal, undocumented policies. 

However, even if your employer has indirectly discriminated against you, it may be able to defend a claim if they can prove that the rule that they imposed was justified. 

In order to succeed in this justification argument, your employer needs to prove that the rule that they imposed was a ‘proportionate means of achieving a legitimate aim’. 

Harassment 

Harassment due to a protected characteristic (sex, race, religion etc) is governed by s.26 of the Equality Act 2010.

For example, if you have been subjected to racial abuse at work (for example by being called names) then you may be able to start a claim of racial harassment. 

There are also special rules which apply to sexual harassment at work which provide you with a right to bring a claim if you have received ‘unwanted conduct of a sexual nature” which violates your dignity or makes you feel humiliated, degraded or intimidated etc (as above). 

As an example, if a colleague at work exposes you to pornography, either by forwarding you an email or text/WhatsApp containing pornographic content, or by downloading it at work in your presence, if you find this humiliated or degraded, you could successfully bring a claim for compensation arising from sexual harassment.

Finally, in order for a claim for any type of harassment to succeed, you must genuinely perceive the conduct to be offensive, intimidating, hostile or degrading etc. 

In other words, you cannot pretend to be offended, and if your employer produces evidence that you participated in harassment or reciprocated, this may harm your prospects of success. 

Your employer may attempt to pass such conduct off as ‘banter’, so it’s important that you aren’t seen to be engaging in anything like this, which might suggest that you don’t perceive it as offensive. 

Purpose or effect?

In order to qualify as harassment, the conduct must have either the purpose or effect (or both) of upsetting you. 

If the conduct was clearly done to upset you (its purpose) then you should win your case. 

However, if the conduct was not deliberate, in order to win your case, you must prove that it was reasonable for the consult in question to have the effect on you that it did. 

Therefore, if you have reacted very sensitively to harassment, you may want to consider whether your reaction was reasonable in all of the circumstances, before making a claim. 

Victimisation 

Victimisation in the workplace is unlawful pursuant to s.27 of the Equality Act 2010. 

Whilst most people understand ‘victimisation’ as meaning being singled out or targeted, it means something slightly different in an employment law context. 

In simple terms, if you have made a compliant or claim under the Equality Act, or given any soft of evidence in support of a discrimination claim (knows as protected acts) and your employer subjects you to detrimental treatment, then you have been victimised. 

In other words, s.27 allows you to make a claim for compensation if your employer had retaliated against you for standing up for your (or your colleagues) equality rights. 

Some examples: 
You have raised a grievance about religious harassment at work (your colleague has made derogatory comments about Muslims). Following the grievance, your employer dismisses you. The dismissal may be an act of victimisation if you can link it to your grievance, as you were sacked after you made a complaint that the Equality Act had been breached.

You gave evidence in support of a colleague at her age discrimination employment tribunal. Your employer was angry with you and started to give you less shifts, causing you financial hardship. This is victimisation, as you are being punished for giving evidence under the Equality Act 2010.

Who does discrimination legislation protect? 

In an employment context, it applies to many categories of people within an organisation – including job applicants, current and former employees, current and former workers (including agency staff), partners and office holders, and trainees and apprentices.  

Who is liable for discrimination in the workplace?

Naturally, the legal entity that you are employed by (for example, XYZ Limited) are liable if they, as an organisation, have discriminated against you. 

If you have been harassed by one of their members of staff (eg sexually harassed by the finance director) the company itself will normally be vicariously liable for his or her actions towards you (see s.109 of the Equality Act 2010, which confirms that acts of employees are treated as having been done by the employer). 

However, employers are able to avoid liability for errant employee’s discrimination harassment if they can prove that they did all that they could to prevent the employee from doing it.

This is known as ‘the statutory defence’, a reference to s.109 of the Employment Rights Act 2010, in which an employer will avoid liability if it can prove that it took “all reasonable steps” to prevent the employee discriminating.

Such steps could include staff induction and training on equality issues and having a dignity at work policy. 

This liability also extend to agents (for example self employed contractors who work alongside employees). 

And employers are liable for employees and agents, even if they have no knowledge of the employee’s or agent’s actions. 

To take an example, you are harassed because of your trans-gender status – a fellow employee refuses to work with you and calls you names under his breath. 

You can bring a gender reassignment harassment claim against your employer and against your colleague personally. If successful, the tribunal will then decide who pays what compensation to you.

How do I prove discrimination? 

Discrimination claims are notoriously difficult to prove. If your employer is discriminating against you, they don’t tend to leave many clues!

One way of trying to gather evidence is to engage in a question and answer session with your employer. ACAS have put together a useful guide in the subject of asking and responding to questions of discrimination in the workplace.

Whilst there is no longer a formal process for asking questions about discrimination (this used to be done formally via a document called a discrimination quesntioniarrre), you are encouraged to put questions to your employer, setting out how and why you believe you have been discriminated against, and asking for a written response. 

Importantly, you can then consider your employers answers and, if they are unsatisfactory, use them as evidence at the employment tribunal. 

If your employer refuses to answer your questions, you can then ask an employment tribunal to take into account the fact that they did not answer your questions voluntarily, when deciding whether you have been discriminated against. 

What are the time limits in discrimination claims? 

You have to ensure that you start your case within 3 months of the act of direct discrimination. 

In indirect discrimination claims, you must start the case within 3 months of the date that you suffer the disadvantage (this may be the date of dismissal or another date). 

In harassment claims you must start the legal process within 3 months of the date of the harassment. 

And in victimisation claims you must start the proceedings within 3 months of the act of detriment. 

These are very strict time limits, so if in doubt, get in touch with a legal advisor.

Finally, in the event that your case is out if time, the tribunal may, in certain circumstances be willing to extend the time by such a period that it thinks is ‘just and equitable’. 

This legal test gives tribunal judges quite a large degree of discretion as to whether to allow discriminations cases to continue, even if they have been presented out of time.

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What to do if you want to make a discrimination claim

Our employment law solicitors have a wealth of experience handling unfair dismissal compensation claims. We have successfully negotiated pre-action settlements and won tribunal awards for clients throughout the UK.

If you wish to make a claim you can call our approachable and professional team on 020 3835 3940 and you will recieve a preliminary assessment of your case.

Alternatively, you can or submit your details 24/7 online via our quick & simple enquiry form.