What counts as discrimination at work?

In Discrimination claim

Explore what’s legally considered discrimination, and how to recognise it in the workplace. When you believe you’re being discriminated against, it may be time to chat to an employment solicitor.

Types of protected characteristics

It’s not always easy to recognise when you’re being discriminated at work – and just as easy to believe you’re a victim of discrimination when you’re not.

Legally, discrimination happens when you’re unfairly treated by your employer or colleague based on protected characteristics.

Outlined in the Equalities Act 2010, these characteristics are fundamental to who you are, and include:
  • Age
  • Gender
  • Race
  • Religion
  • Sexuality
  • Disability
  • Marriage and civil partnerships
  • Pregnancy and maternity
 

Types of discrimination

You’ll generally come across two types of discrimination in the workplace.
  • Direct discrimination

Direct or overt discrimination happens when an employer or colleague singles you out because of a protected characteristic. A common example would be using an offensive slur against you. In some cases, direct discrimination occurs by association – you’re unfairly treated because of the protected characteristics of someone you know.
 
  • Indirect discrimination

By its nature, indirect discrimination can be a little harder to pin down – and if you’re unsure if you’ve been discriminated against this way, chat to employment solicitors. This is where a company introduces rules that unfairly affect certain groups, such as introducing working hours that would suit men but impact women.
 

How to spot discrimination at work

Hiring process

You’ll sometimes see discrimination in the hiring process. For instance, a job ad that specifies the company is only recruiting staff with 5 years’ experience could indirectly discriminate against younger people. You might also see a job only advertised internally to a set team, in which all candidates have the same background, ethnicity, or other characteristic – and that puts others at a clear disadvantage.
 

Contracts

Always read your contract carefully. It’s possible that certain terms and conditions within will hit you harder due to protected characteristics. For example, your contract stipulates that you must work specific hours, but those hours infringe on your religious practice. You should try to talk to your manager or senior staff, as most companies will be willing to make allowances and avoid a discrimination claim.
 

Promotion

Many discrimination cases are due to an employee being passed over for promotion. Seeing a lesser-qualified colleague get the job you’ve been training your whole life for is frustrating. More so if they only got the job due to their age or gender. An example might be a manager that doesn’t promote you because you’re a woman and ‘men don’t get pregnant’. Unless the company can legally justify their reason not to promote you, it’s a clear case of discrimination.
 

Pay, pensions, and perks

While it may seem obvious – employees with similar experience doing the same job should be paid the same – some companies don’t adhere to this basic principle. If your employer is paying you less because of, say, your ethnicity or gender, that could indicate that you’re facing discrimination. This extends to your company’s pension plan, plus the benefits and perks of your job.
 

Dismissal

No-one should be fired strictly because of their protected characteristics. Only your conduct (or, rather, misconduct) should have a bearing on your employment – and even then, it’s possible that you’re the victim of unfair dismissal. So, your boss can’t fire you just because your faith requires you to pray at specific times during the day.
 

What isn’t discrimination?

While workplace discrimination covers many areas, there are a handful of times when an employer takes action that appears to be discrimination, but technically or legally isn’t. An employment solicitor will be able to help you identify whether you can make a discrimination claim.
  • Unrelated to protected characteristics

You might be sacked or face disciplinary action or feel you’re treated poorly for any number of reasons, both good and bad. While you may still be able to prove, for instance, unfair or constructive dismissal, if your employer’s behaviour is unrelated to your protected characteristics, it’s not classed as discrimination.
 
  • Justified business decisions

If your employer can prove that their action is justified – that it fulfils a clear business need – then it might not count as discrimination. For example, a female healthcare clinic might only employ other women, given the nature of the business and its clients.
 
  • Reasonable action

If a business faces a discrimination claim, they might be able to suggest that they took reasonable action to prevent the discrimination and protect an employee. It’s rare, and in most cases, this relates to discrimination from a third-party providing goods and services to the business.
 

When should you talk to employment solicitors?

You can talk to an employment solicitor whenever you feel you’ve been discriminated against at work. They’ll be able to advise you on the case and how to challenge an employer or colleague.  

Legal action is usually considered the last resort, before taking your claim to an employment tribunal. In the first instance, keep a record of your discrimination and try to resolve the matter with your manager or senior staff.
If you don’t go through mediation this beforehand, the tribunal will offer you the opportunity – known as ‘early conciliation’. You or your employer can decline to attend, but you could find you can’t make a claim, or find your case seriously hampered.

For more help, see our guide So, you’ve been discriminated against at work: your next steps

Employers have a legal obligation to prevent workplace discrimination. If the problem can’t be resolved, make a formal complaint. By law, your employer must investigate this.

If you believe you have a discrimination claim, use our quick quote form to find employment solicitors who will take the time to understand your case.
 

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