Discrimination

It is unlawful for an employer, its employees or agents to discriminate against other employees because of a “protected characteristic”. The Equality Act 2010 is the statutory provision that sets out the 9 protected characteristics and these are:

  • Sex
  • Marriage or civil partnership
  • Religion or belief
  • Race 
  • Age
  • Disability
  • Gender reassignment
  • Pregnancy and Maternity
  • Sexual orientation

Discrimination is “less favourable” or “unfavourable” treatment, on the grounds that an employee has, or is associated with (see direct discrimination below), one (or more) of the protected characteristics listed above. Unless the treatment is related to, or because of the protected characteristic in question, unfair treatment in general terms is not discrimination (although employers should exercise caution because, if an employee is treated unfairly, they may be able to claim breach of contract or constructive dismissal, despite being unable to claim discrimination if the treatment does not relate to a protected characteristic)

The types of discrimination;

Direct Discrimination

An employee might claim that they have been treated less favourably because of the protected characteristic than someone, for example, of the opposite sex, a different race or without the relevant disability. Sometimes an employee will identify a comparator who has been treated more favourably in the same, or similar circumstances. It is a defence for an employer to show that the reason for the treatment has nothing to do with the protected characteristic, but the burden of proof will be on the employer to show the true reason for the treatment in question. It is also possible for an employee to rely upon a “hypothetical comparator” i.e. someone who is not real but rather hypothetical, possesses none of the relevant protected characteristics and is in materially the same circumstances. An employee might also, if claiming direct discrimination, argue that they have been treated less favourably because of their association with someone with the protected characteristic (this is typically claimed when an employee has a disabled relative for whom they have caring responsibilities).

Indirect Discrimination

Indirect Discrimination arises when a person who possesses the relevant protected characteristic is disadvantaged because of a (ostensibly neutral) policy, criterion, or provision, (PCP) that is practiced by the employer which places a particular group with a protected characteristic at a disadvantage. A common example is that the business requires all its employees to work full time. The requirement to work full time is the PCP.  This has the  (indirect) effect of disproportionately disadvantaging women, as a greater proportion of women have caring responsibilities and cannot work full time. This will be unlawful unless the discrimination can be objectively justified as a proportionate means of achieving a legitimate aim.