What is Discrimination in the Workplace?

It doesn’t matter what a person’s employment status is or how long they’ve worked for you… All employees are protected from unlawful, unfavourable treatment during work. This is known as ‘discrimination’.

Employers have a lawful duty to ensure their workers don’t face discriminatory actions. If you neglect this, you could end up facing tribunal claims, compensation penalties, and reputational damage. For more advice, contact one of our expert HR consultants free of charge today.

In this guide, we’ll look at what discrimination is, what the law covers, and how to prevent such misconduct from occurring within your workplace.

What is discrimination in the workplace?

Discrimination in the workplace is when a person is treated less favourably due to a protected characteristic.

This form of discrimination at work can occur with or without intent. It can also derive from colleagues, managers, customers, third-party people, and even employers.

People who face discrimination are often left feeling disrespected, undervalued, and hurt because of the action. It can leave employees feeling unmotivated to work, choosing to quit their jobs, and even raising their issues to an employment tribunal.

Are there different types of discrimination?

Yes, there are different types of discrimination outlined under the law. The main ones include:

Direct discrimination: This is when a person with a protected characteristic is treated less favourably than others. For example, a Black candidate is told they didn't make it through the selection process because it was believed they wouldn’t fit into the business’s work culture.

Indirect discrimination: This is when rules or practices that apply to everyone puts a person with a protected characteristic at an unfair disadvantage. For example, a dress code policy states headscarves aren’t part of the office uniform policy which alienates female certain Muslim employees.

Harassment: This is when a person faces unwanted behaviour linked to a protected characteristic. The behaviour violates their dignity or creates an offensive environment for them. For example, a male employee faces sexual harassment jokes from his female colleagues on a daily basis.

Victimisation: This is when a person is treated unfairly because they complained about discrimination or harassment. For example, an employee witnesses a manager taunting a trans employee about their sexuality and raises it to HR. The employer demands they retract their complaint or risk facing dismissal.

Discrimination by perception: This is when a person is viewed as having a protected characteristic and is therefore treated less favourably because of it. For example, a recruitment manager refuses to consider job candidates who have ‘foreign-sounding’ names.  

Discrimination by association: This is when a person associates someone to have a protected characteristic and is therefore treated less favourably because of it. For example, an employee is considered first for collective redundancy because it was believed they had trade union membership.

What does the law say about discrimination?

The Equality Act 2010 states it’s illegal to discriminate against someone because of nine protected characteristics. These include:

• Age.
• Disability.
• Gender reassignment.
• Marital or civil partnership.
• Pregnancy or maternity.
• Race.
• Religion and personal belief.
• Sex.
• Sexual orientation.

If a person believes they were discriminated against because of a protected characteristic, the employee may decide to raise a claim to an employment tribunal. If found guilty, you could face compensation penalties, business disruption, and reputational damage.

Is discrimination ever allowed?

Yes, there are certain cases where discrimination is allowed under the law. These include:

Positive action: This is used to help a disadvantaged or underrepresented group. For example, a manager specifically considers younger workers for staff training opportunities to help boost their career development.

Objection justification: This is when you can prove a legitimate need for less favourable treatment. For example, a health & safety compliance officer doesn’t allow staff to wear jewellery during work hours in case it gets caught on machinery – including religious necklaces.

Disability exception: This is when a person with disabilities is purposely hired in a way that eliminates the risk of disability discrimination. For example, a manager aims to promote more employees with medical disability conditions into roles of leadership.

Occupational requirement: This is when a person with a certain protected characteristic is recruited to do a particular job. For example, a domestic abuse shelter predominantly hires female staff, so victims feel comfortable whilst in their care.

Who is responsible for discrimination in the workplace?

The main responsibility for discrimination in the workplace falls to the employer. Under the law, all employers must:

• Make sure they don’t unfairly discriminate against someone in any aspect of the business.
• Take steps towards preventing discrimination.
• Do what they reasonably can to protect staff being discriminated against from others.
• Look after the wellbeing of their employees (also known as ‘duty of care’).

If an employee raises a discrimination complaint, their employer could be held responsible – even if it came from someone else. This is called ‘vicarious liability’.

Who is protected from discrimination in the workplace?

In the workplace, protection from discrimination applies to employees, workers, and job applicants. It also applies to former employees, too.

Contractors and self-employed people are also protected from discrimination at work. But prevention laws only apply if they’re personally hired to do work for your business.

Where can discrimination in the workplace occur?

There are several areas where discrimination can occur within a workplace. For example:

Recruitment: An interview selection process only considers able-bodied candidates and eliminates people with physical disabilities for no good reason.

Training: A manager doesn’t offer career development opportunities to employees who are pregnant or have childcare responsibilities.

Staff development: A workplace policy only provides employees over a certain age with promotional opportunities.

Employment contract: A contractual clause states employees cannot use their annual leave for religious holidays more than once a year.

Pay and benefits: A business pays their female staff relatively less pay compared to their male counterparts who are in the same role and have the same responsibilities.

Redundancy: During a workplace restructure, an employer selects employees who have trade union membership for redundancy first over those who don’t.

Dismissal: An employee’s contract is terminated because their employer didn’t believe in their sexual orientation beliefs.

Get expert advice on preventing discrimination in the workplace with Peninsula

From sexual orientation to religious beliefs… all employees are protected from facing unlawful, discriminatory acts at work. Employers have a legal duty of care to prevent, manage, and eliminate such events from affecting their staff.

Peninsula offers expert advice on preventing discrimination in the workplace. Our 24/7 HR advice is available 365 days a year. Want to find out more? Book a free chat with one of our HR consultants. For further information, call 0800 051 3685.