What is discrimination in the workplace?

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Discrimination at work is where you are treated unfairly in relation to a ‘protected characteristic’.

Discrimination at work happens when you are treated unfairly at work because of your:-

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation.

Discrimination can be direct or indirect, or you may be harassed, bullied or victimised because of one of the above.

What is a Protected Characteristic?

A protected characteristic is one of the characteristics (above) in relation to which discrimination has happened (age, disability, etc).

What are the different types of discrimination?

There are several types of discrimination under the Equality Act 2010, which brought the legislation regarding the protected characteristics into one place.   They include:-

  • direct discrimination
  • indirect discrimination
  • harassment
  • victimisation

What is Direct Discrimination?

This is where someone is treated less favourably than another because of a protected characteristic.

For instance, a man is recruited instead of a woman of childbearing age because it is assumed that the woman will take time off to have babies.

What is Indirect Discrimination?

This is where a policy or rule (known as a “provision, criterion or practice”) has a greater impact on someone because of their protected characteristic, than it does for someone without that protected characteristic.

For instance, a company runs some in house training in the evenings, but female staff complain that they can’t attend due to childcare commitments.

Age is one of the ‘protected characteristics’ which can be the basis of discrimination at work.

What is Harassment at work?

Harassment is where someone is treated in a way that violates their dignity, or that creates a hostile, degrading, humiliating or offensive environment for them.

For instance, someone’s abilities and skills are constantly questioned, and they are criticised by their manager in front of their team, because of their ethnic origin.

What is Victimisation at work?

This is where someone is treated unfairly because they have made a complaint under the Equality Act or are helping someone else who has made such a complaint.

For instance, someone is dismissed for having made a complaint about harassment.

Who has Discrimination rights?

All employees and workers have the right not to be discriminated against at work.

Protection against discrimination is given to more individuals than other statutory employment rights such as unfair dismissal, or maternity rights.  The rights apply from the day you start work, or even beforehand.

Can a job applicant be discriminated against?

Yes!  Job candidates (ie not yet employees of a business) also have discrimination rights, for instance if they were rejected because of a protected characteristic.

What should I do if I feel I am being discriminated against at work?

If you feel that you are being, or have been, treated unfairly at work, the first step is to check your employer’s staff handbook for any policies that apply. Policies may sometimes expect you to raise things informally with your manager, but that’s not necessarily appropriate in all cases.

Should I take a Grievance for Discrimination at work?

We often advise that a formal grievance is the better way to proceed, whatever you want to achieve.  It can help make your employer take your complaint seriously, insofar as you’ll have more complaints if they fail to properly deal with your grievance. Also, there may be a wider problem that you’re unaware of, for instance, you may not be the only individual being sexually harassed, but your employer lacks evidence so far.

Can I take a Discrimination claim to an Employment Tribunal?

If a grievance process doesn’t lead to a resolution, and you haven’t reached a settlement deal, then you could bring a claim in the Employment Tribunal.

Disciplinary action for Discrimination at work?

Equally, for an employer, we might advise you to ask the employee if they’re happy for an informal complaint to be dealt with as a formal grievance, especially if there may be a disciplinary issue, because it can be worth showing that you’ve investigated fully as early as possible.

Even if you end up dismissing the complaint, working through your grievance/disciplinary processes can help prepare the ground for negotiations or to defend a claim by giving you the framework in which to gather all the information and show that you have fully investigated.  Or, to follow on from the above example, you may already have other complaints about a manager’s behaviour but need more evidence to consider disciplinary action.  Be mindful, though, of confidentiality and privacy obligations, especially where nothing has yet been proven.  It can be a minefield.

How is Discrimination Compensation calculated?

Compensation for discrimination is not capped, like compensation for unfair dismissal, so technically there’s no limit to the compensation that could be awarded.

Compensation can be given for loss of earnings, covering the financial losses actually suffered.  In cases that have hit the media, where large six figure sums have been awarded, this will usually be because the claimant has been found to have lost a substantial bonus or other contractual payments as a result of the treatment received. On occasion, awards are made for total career loss, which will also lead to a large total figure.  These aren’t representative of the majority of cases.

In addition, Tribunals can award compensation for injury to feelings, which is a discretionary award that recognises how upset you were by the treatment received, rather than as a punishment for the employer.

The average total compensation awards for discrimination range from £18,623 for age discrimination to £32,680 for sexual orientation discrimination, with sex discrimination awards averaging £24,630, disability discrimination £26,172 and race discrimination £27,607 (source: gov.uk/government/statistics/tribunal-statistics-quarterly-july-to-september-2022).

Employment Law Solicitor

If you need more help around discrimination at work then do reach out to our expert employment law solicitors at employment@qlaw.co.uk or call us on 03300 020 863.

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