What is Discrimination?

A general definition of discrimination refers to be as being unfair or unjust treatment of people because they possess certain characteristics, such as age, race and religion.

Under the Equality Act 2010, there are four main types of discrimination:

• Direct discrimination.
• Indirect discrimination.
• Harassment.
• Victimisation.

Discrimination does not need to have been taking place for a set amount of time before someone can claim that they have been discriminated against and in a workplace specifically, discrimination can occur from when a job advertisement is placed to when an individual leaves a role and beyond.

According to the Independent ‘more than 25% of UK workers say they have experienced workplace discrimination.’

It is important if you are a leader that you make sure you set the right example for others, so they don’t see you discriminating.

A general definition of discrimination refers to be as being unfair or unjust treatment of people because they possess certain characteristics, such as age, race and religion.

Under the Equality Act 2010, there are four main types of discrimination:

• Direct discrimination.
• Indirect discrimination.
• Harassment.
• Victimisation.

Discrimination does not need to have been taking place for a set amount of time before someone can claim that they have been discriminated against and in a workplace specifically, discrimination can occur from when a job advertisement is placed to when an individual leaves a role and beyond.

Direct Discrimination

Direct discrimination occurs when someone is treated less favourably than others because of a protected characteristic.

It also occurs when someone is treated less favourably because of a protected characteristic of someone that they are associated with such as a family member, friend or carer. This is referred to within the legislation is discrimination by association.

A third example of direct discrimination is direct discrimination by perception, which means that an individual is assumed to have a protected characteristic, regardless of whether this perception is correct or not. For example, someone may be perceived as being a particular religion or age.

Indirect Discrimination

Indirect discrimination is often more difficult to identify than direct discrimination and sometimes it is not intended and comes about due to lack of understanding of the law or a genuine error of judgment about an individual.

Legislation states that indirect discrimination involves a ‘provision, criterion or practice’ that involves all four of the following factors:

• The ‘provision, criterion or practice’ is applied equally to individuals only some of whom share a protected characteristic.
• It has, or will have, the effect of putting those who share the protected characteristic at a particular disadvantage when compared to others who do not share the characteristic within the group.
• It puts or would put an individual at a disadvantage.
• The discrimination cannot be justified.

The Equality Act 2010 does not specifically define what is meant by a ‘provision, criterion or practice’ but it is likely to refer to things like an employer’s policies, procedures and requirements, even if these are informal and may not be written down.

Harassment

Harassment is any form of unwanted behaviour and must be related to a protected characteristic or be of a sexual nature. Its intentions must be to violate an individual’s dignity or create for them an environment, which may be described as intimidating, hostile, degrading, humiliating or offensive.

Harassment may be:

• Bullying, inappropriate nicknames, threats, gossip, exclusion, insults, unwanted physical contact, asking intrusive or inappropriate questions and ‘banter’.
• Written, verbal or physical.
• Based on what the victim perceives as harassment not what the harasser sees as the same and whether or not it is reasonable for the victim to feel that they are being harassed.
• Applied to an individual who is harassed regardless of whether they have a protected characteristic or whether they are correctly perceived to have one.
• Apply to an individual who is associated with someone who has a protected characteristic.
• Apply to someone who witnesses harassment because of a protected characteristic, which may then have an impact on their dignity at work or on their working environment. It does not matter if the witness shares the protected characteristic with the individual who is being harassed or not.

Attempts by the harasser to claim that their behaviour was not intended or that it was just ‘banter’, would not be classed as a defence.

As well as the Equality Act 2010, individuals may be protected by the Protection from Harassment Act 1997, which does not limit harassment to circumstances where a protected characteristic applies.

Victimisation

Victimisation occurs when an individual experiences what is referred to in law as a ‘detriment’, which is something that causes disadvantage, damage, harm or loss because of one or more of the following:

• Making an allegation of discrimination.
• Supporting a complaint of discrimination.
• Giving evidence relating to a complaint about discrimination.
• Raising a grievance concerning equality or discrimination.
• Anything else with the purposes of the Equality Act 2010, such as raising an employment tribunal claim of discrimination.

It may also be the case that victimisation occurs because an individual is merely suspected of doing any of the above or it is believed that they are going to do so at some point in the future.

Age discrimination

Age discrimination is one of the most common forms of discrimination within a workplace. Age gaps between members of staff may now be up to 50 years, as individuals are working much later on into their life.

Features of the Equality Act 2010 relating to age discrimination include:

• Protection against unfair treatment because of actual age, perceived age or the age of someone with whom they are associated.
• Protection against harassment because of age.
• Different treatment because of age being allowed but only in very limited instances.

Disability discrimination

The Equality Act 2010 gives individuals equal protection in terms of both mental and physical disability.

There are four main kinds of discrimination in relation to disability:

• Direct discrimination: When someone is treated differently and not as well as others because of disability. This can occur because of an individual’s own disability, a perceived disability or their association with someone who has a disability.
• Indirect discrimination: This may occur when a rule, practice or procedure is applied to everyone but disadvantages those individuals who are disabled.
• Harassment: This relates to unwanted behaviour, which is related to an individual’s disability, which causes distress, humiliation or offense to the individual.
• Victimisation: This refers to treating someone unfairly because they have made or supported a complaint about disability discrimination.

As well as these four main forms of discrimination, it may also occur if, in a workplace or elsewhere, there is a failure to make ‘reasonable adjustments’ for an individual who has a disability. Adjustments should ensure that a location or practices do not disadvantage someone with a disability.

Gender reassignment discrimination

The Equality Act 2010 covers individuals who are going through or who propose to go through any process or part process, which changes their gender from man to woman or woman to man. Individuals who undergo this are referred to within legislation as ‘transsexual’ individuals.

Genders that lie outside of man or women are not specifically protected within the Act. These are classed as non-binary identities, such as individuals who choose not be identified as a man or a woman.

Marriage and civil partnership discrimination

Under the Equality Act 2010, same-sex couples who register or who marry have almost all of the same rights as married opposite-sex couples. The Act equally protects individuals who are in a civil partnership or marriage.

Direct discrimination may occur if someone is treated differently because of their marital status, for example an employer may not promote someone who is married if they feel that the new role is better suited to a single person. Indirect discrimination may occur if a rule or policy disadvantages someone who is in a civil partnership or marriage.

Direct discrimination by perception and association do not apply to marriage and civil partnerships.

Mental health discrimination 

A mental health condition is considered a disability if it has a long-term effect on a person’s normal day to day activity, therefore employers cannot legally discriminate against anyone with a mental health illness that classes as a disability, as this is a protected characteristic under the Equality Act 2010.