‘Discrimination’ is a word often batted around by the press, usually in the context of race or sexuality. It often gives the impression of being about other people, and is not something that many of us would think of as part of our everyday lives.
However, discrimination can, and does, occur on a daily basis for some people within the workplace.
From a legal basis, the Equality Act 2010 protects workers against discrimination under the following categories:
- Race (Colour, Nationality, Ethnicity or national origin)
- Religion or Belief
- Marriage or civil partnership
- Sexual Orientation
- Gender reassignment
- Pregnancy or Maternity
These are known as protected characteristics and a worker can make a legal claim for discrimination under any, or all of them.
What is discrimination?
In the eyes of the law, discrimination falls under four headings:
Direct discrimination: This is treating a person less favourably because they fall into one of the above categories. For example, promoting a man because he is less likely to take time off to have children is sex discrimination.
Indirect discrimination: Sometimes every person is treated in the same way, but the impact of the treatment is worse for a particular group or category of worker.
Example: A company imposes a blanket ban on part-time working. The policy is applied equally to everyone, so it cannot be considered direct discrimination.
However, the effect on women, who are statistically more likely to have caring responsibilities, would be greater than it would be on men.
An employer is permitted to discriminate indirectly if the provision, criterion or practice can be objectively justified. If there is a genuine reason, outweighing the harm caused to a particular group, then it may be an acceptable policy to adopt.
Example: A job advert requires ten years’ experience. This might discriminate against young people (age discrimination) or women who have taken time off to care for children (sex discrimination).
However, if it would be impossible to do the role effectively without that experience then it could be ‘objectively justified’.
Harassment: This is the most common area of discrimination. Harassment is any conduct which violates a person’s dignity, or creates a hostile, degrading, humiliating or offensive environment. It covers everything from bottom pinching, lewd jokes and questions of an intimate nature to racial profiling.
It does not matter how the comments or actions were intended (‘banter’ is not a defence). The important factor is that the victim felt degraded or humiliated. Even if they have laughed along with the jokes to hide their own embarrassment, they can still make a harassment claim.
It will be up to a court to decide whether it was reasonable for such conduct to have caused offence.
Victimisation: People often use the word bullying or victimisation interchangeably. However, victimisation has a particular legal meaning, only referring to a person being treated badly because they have taken steps to prevent discrimination.
Any genuine allegation or complaint about discrimination would count as a step. Those assisting with a complaint (acting as a witness at a tribunal, or writing a statement to support a grievance) are also protected.
What is not legally covered?
Negative treatment due to characteristics outside of the ‘protected categories’ has no legal protection.
Example: Statistics show that people with certain regional accents are less well paid, even taking into account geographical pay difference.
A regional accent is not a protected characteristic, therefore there can be no discrimination claim. However, differences in treatment due to accents based on ethnicity or national origin are discriminatory.
A person with a French accent could rely on the Equality Act to help them bring a claim because the discrimination is intrinsically linked to their nationality.
Other proposed categories that might warrant protection have been raised over the years. Protection from discrimination has been suggested for people with disadvantaged socio-economic status, people with short or tall stature and those who are overweight.
Although poor treatment of all of these may be considered bullying, it cannot legally be considered discriminatory.
Am I protected?
You are protected from being subjected to discrimination from the moment you apply for a job, all the time that you work for your employer and even after you have left.
It is also worth noting that as well as people who hold the ‘protected characteristics’ obviously being protected, so are those who do not. If a person in the office is making racists jokes about Irish people, it is not necessary for a person to be Irish for them to feel seriously upset and offended.
Compensation for discrimination
If you are forced to leave your job due to discrimination you may be entitled to compensation in the same way as if you had been dismissed. In addition a tribunal may award compensation for ‘injury to feelings’.
Injury to feelings payments fall into three bands and follow what are commonly known as the Vento guidelines. For cases presented to tribunals after September 2017 the bands are as follows:
The lowest band is £900 to £8,600
The middle band is £8,600 to £25,700
The upper band is £25,000 to £42,900.
These figures are guidelines and tribunals are not bound by them. There is no upper limit for injury to feelings compensation and in exceptional cases, particularly where discrimination has been long running, individuals may be awarded well in excess of £42,900.
Dealing with discrimination
Businesses need to take steps to resolve problems early. Many organisations have equality and inclusion policies which provide guidance on dealing with discrimination.
There is no need to suffer in silence or build up a whole raft of evidence before you take action. The courts have considered a single remark to be discriminatory.