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.

How to prevent discrimination in the workplace

Under the Equality Act 2010, all employers must prevent discriminatory actions within their workplace. This doesn’t just include defending their protected characteristics. It also includes eliminating such acts from happening again within your business.

Failing to prevent discrimination in the workplace could lead to serious consequences. Employers could face employment tribunal claims, compensation penalties, staff departures, business disruption, and reputational damages. For more advice, contact one of our expert HR advisors free of charge today.

Now, let’s look at ways employers can prevent discrimination from occurring in their workplace:

Create an anti-discrimination policy

The first step employers should take involves creating an anti-discrimination policy. The policy should be available for all employees throughout your business – no matter what their work status is.

Your anti-discrimination policy should outline what discrimination is, examples of discrimination at work, and how the business plans to manage (and eliminate) such actions.

It’s best to have a standalone policy on anti-discrimination. But you can add it to other policies, like bullying and harassment; or equality, diversity, and inclusion. It’s also advisable to add terms within other workplace documentation, like employee handbooks and employment contracts.

Provide anti-discrimination training

Employers should provide staff training on anti-discrimination to their HR teams, management, and general workforce. That way, they’ll be able to spot, manage, and minimise incidents of discrimination happening in the workplace. Anti-discrimination training can cover all kinds of areas. For example:

• Recruitment methods.
• Staff development.
• Pay and benefits.
• Grievances.
• Disciplinaries.
• Redundancy.
• Dismissal.

Amend current practices and procedures

Once you’ve passed your anti-discrimination policy, it’s a good time to make necessary amendments to other practices and procedures – eliminating any signs of discrimination. Some areas to check include:

Working hours: Make sure these policies don’t discriminate against employees who take annual leave to observe religious festivities.

Dress codes: Make sure you know where discrimination can occur, especially when you have a legitimate aim behind the decision, like health & safety. Inform the individual about your decision beforehand and see if exceptions can be made.

Sickness absence: Make sure these procedures don’t discriminate against employees who are pregnant or have disabilities (physical or psychological). This can include trans employees undergoing gender confirmation treatment.

Deal with grievances internally

If an employee raises a discrimination complaint, aim to resolve their grievance internally. Once an incident is raised, your aim isn’t to shift the blame from the business. It’s about reaching a fair, reasonable, lawful, and mutual resolution for the issue.

By resolving the situation internally, you’ll be able to avoid severing employee relations and minimise reputational damages. If the issue isn’t resolved properly, the victim could decide to raise their issue to an employment tribunal – which can include a costly, complicated, and time-consuming legal battle.

Promote a safe and supportive workplace environment

Every employer has a legal duty of care when it comes to identifying workplace discrimination. Employees should be treated with equality and fairness at work. The benefits of identifying discrimination at work allows you to:

• Create a safe and healthy workplace environment.
• Reduce bullying, harassment, and victimisation.
• Support statutory rights and work entitlements.
• Provide workplace changes to applicable employees.

Comply with statutory responsibilities

Whether it was intended or not, discrimination is unlawful within the workplace (except in certain occasions). Employers must acknowledge what their statutory responsibilities are and keep compliance throughout their business realms.

Employers have a legal duty of care to protect their staff from all forms of unlawful discrimination. When it comes to discrimination laws, you’ll need to show compliance to:

• The Employment Rights Bill.
• The Equality (Race and Disability) Bill, 
• The Worker Protection (Amendment of Equality) Act.

Acknowledge when discrimination is allowed

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.

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.