Encountering discrimination in the workplace can be incredibly stressful. However, you can take action against it if you have been a victim. This article answers some of the most common questions about discrimination at work, including what counts as workplace discrimination and what you can do about it.
What is discrimination in the workplace under the Equality Act 2010?
The Equality Act identifies several types of workplace discrimination, each with its own definition. Roughly, discrimination at work happens when you are treated less favourably than others, or sometimes unfavourably (without needing a comparison to others), because of one or more protected characteristics.
Discrimination can happen anytime, including during the recruitment process, through workplace policies, promotion, training, dismissal and even after the employment ends.
Is discrimination in the workplace illegal?
Discrimination against someone because of a protected characteristic is against the law in the UK. This doesn’t just apply in the workplace; workers can also be discriminated against outside of work. There is legislation in place designed to protect workers from discrimination. Primarily this is the Equality Act 2010, which combined and replaced several separate Acts.
If an employer is found to have breached the Equality Act, the employee who has been a victim can claim compensation through an employment tribunal.
What are the different forms of discrimination?
When it comes to discrimination in the workplace, there are several different types, in particular:
This happens when someone receives less favourable treatment because of a protected characteristic they possess or are perceived to have.
In these cases, the discrimination is usually a deliberate act. However, it does not have to be done on purpose to breach the Equality Act; discriminatory motives may also be unconscious.
Typically, direct discrimination requires comparing how the employer treats the person with the protected characteristic to how they treat others. However, a comparison is not always necessary for direct pregnancy and maternity discrimination, you can simply complain about unfavourable treatment. Furthermore, it is discrimination if an employer treats an employee unfavourably because of a disability, which also does not require a comparison.
Indirect discrimination usually occurs when a blanket measure or policy is put in place that applies to everyone but may disproportionately put certain people or groups at a disadvantage. This may not be done intentionally, but it still counts as discrimination. For example, the employer may implement a policy requiring all employees to work on a Sunday. The policy could be considered discriminatory to those who do not work on Sundays for religious reasons; their religion is a protected characteristic.
To count as harassment, the victim must experience unwanted contact because of a protected characteristic. Furthermore, the perpetrator’s behaviour must produce a hostile, offensive, humiliating, or degrading environment or violate the victim’s dignity.
More important in these scenarios is how the behaviour makes the victim feel, not how the perpetrator intended it. As such, the perpetrator cannot use the excuse that the conduct was ‘joking’ or ‘banter’. However, if the employee joyfully takes part in offensive office banter, that could cause problems for a claim if they become the subject of a joke. A tribunal might also consider whether it is reasonable for the actions to have the claimed effect.
Examples of harassment in the workplace can include excluding someone from activities, spreading rumours, bullying, or unwanted comments and questions.
Victimisation occurs when the victim is treated poorly because they have raised a grievance or complained about discrimination. It could be discrimination happening to them or somebody else.
Failure to make reasonable adjustments for a disability
If an employee has a long term health condition that affects their daily activities, the employer must make reasonable adjustments to help the employee. Failure to do that is a form of discrimination.
Who is protected from work-related discrimination?
Discrimination at work can happen to anybody. Several categories of people at work are protected by the Equality Act 2010, including employees and workers. The self-employed are generally not protected, but they may be if they have an obligation to perform their work personally. Police officers are also protected, as are partners in a firm and several other types of workers.
To be considered discrimination, you must experience adverse effects at work, or sometimes connected with work, because of one or more of the protected characteristics listed below.
What are protected characteristics?
Protected characteristics are a list of characteristics defined by the Equality Act 2010. Discriminating against employees because of protected characteristics is unlawful. They are as follows:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
Some characteristics (e.g. age or sex) are things that everyone has. So, anybody can be a victim of discrimination in the workplace; you do not necessarily have to be part of a minority group.
What is the Equality Act?
The Equality Act 2010 is a piece of legislation designed to protect people in the UK from discrimination, both in the workplace and in broader society.
It sets out the protected characteristics that you can be discriminated against because of and what counts as unlawful discrimination at work, as a consumer, in education, and so on.
Is there a time limit to bring about a claim for workplace discrimination?
Yes. If you want to bring about a claim for discrimination at work, you must submit your claim within three months of the incident occurring. The day on which it occurs counts as the first day, which in effect means you have three months less a day. So, if you are planning on bringing about a claim, you should do it as soon as possible to avoid complications with this time limit.
If it is a series of ongoing incidences, the three-month time limit resets every time one occurs, so you would still be able to bring a claim relating to the first act even though it was more than three months ago. However, it is prudent to act swiftly as the employer may argue that it is not a continuing act.
If you have a good reason for your delay, you could still consider bringing a claim. A tribunal may extend time if it is just and equitable to do so. But again, the employer will argue against this, so it is sensible to act quickly.
You will not be able to lodge a claim at an employment tribunal without engaging Acas first. Acas will then offer you ‘early conciliation,’ giving you the chance to resolve the dispute without going to an employment tribunal.
What is an employment tribunal?
An employment tribunal is an independent body designed to resolve legal disputes surrounding employment or dismissal in the UK. You can go to an employment tribunal if you believe your employer has treated you unlawfully. For example, you have been a victim of discrimination, unfair dismissal, or unlawful pay deductions. An employment judge usually decides the outcome of the tribunal and chairs employment tribunal hearings. But, for discrimination claims, there will be a panel of three, including two members who are not from the judiciary.
These days, many tribunal hearings occur remotely by live video, but the process remains the same.
Can I claim compensation for discrimination at work?
In many cases, you may be able to claim compensation for injury to feelings and financial losses if you have been a victim of discrimination. You may be able to resolve this directly with your employer, but if not, the employment tribunal may rule on what you are entitled to.
Remember that you will need to make your claim within the three-month time limit. The amount of compensation that you can receive will depend on several factors, including the severity of the discrimination, its effect on you, how many incidences there were, and the financial loss caused.
Do I need a solicitor for my discrimination case?
Employment law is a complex area. While it is not a legal requirement to have a lawyer for an employment tribunal relating to discrimination, it is highly recommended, and many people choose to have one.
A solicitor will be able to advise you if you have a strong case and what you may expect to receive if the tribunal is successful. Generally, each side covers its own legal costs in the tribunal, whether they win or lose. However, sometimes you can apply to have your costs covered by the other party. In particular, if the other side’s position has no reasonable prospect of success, or if they’ve acted unreasonably, they might be ordered to pay your costs.
The other advantage of a solicitor is the weight your employer is likely to attach to their correspondence. This is particularly relevant if you hope to get a settlement agreement. If you need an experienced employment law solicitor for your case of discrimination in the workplace, get in touch today.
What can I do if I am being discriminated against at work?
If you believe that you have been a victim of discrimination at work, there are several routes you can go down.
Firstly, you can raise the matter informally within the workplace, for example, by talking to your manager. You may be able to resolve the issue internally, especially if the action was not intended to be discriminatory. Matters your employer may take to resolve it include disciplinary action against the perpetrator or changing a discriminatory policy.
You could also raise a grievance through your workplace’s formal grievance procedure. It should be clear to all employees how to do this. If this is not the case, you should consult your line manager, HR personnel, or union rep. Acas has set out standard procedures that you can use if your employer does not have their own in place.
Another option is to go to the employment tribunal. You do not have to have raised the discrimination with your employer before going to the tribunal, but if you have not, you may be eligible for up to a quarter less financial compensation than if you had done so.
Finally, you may wish to seek compensation without going all the way to a tribunal hearing. Many potential claimants first write to their employer to advise them of their intention and suggest avoiding the time and stress of litigation by agreeing to a settlement agreement instead. Settlement negotiations can occur at any stage, before or during litigation and even at the door of the tribunal. They are strongly encouraged by employment tribunals.
No matter what you decide to do, you should keep a written record of any incidents of discrimination, including what happened, where, and when. Discrimination can also be something that your employer has failed to do, so ensure that you keep a record of this as well.
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