Discrimination

Yes, employers can be liable for anything discriminatory that is done by an employee, agent, consultant or contractor in the course of their employment (no matter how junior the employee may be and irrespective of whether the employee’s actions were done with the employer’s knowledge or approval).

An employee alleging discrimination can bring a claim against the alleged discriminator personally and the employer.

There are 9 ‘protected characteristics’ under the Equality Act 2010 which are: sex, disability, race (including nationality), age, pregnancy and maternity, marriage and civil partnership, religion or belief, gender re-assignment and sexual orientation.

There are four main types of discrimination claim that can be brought against an employer. They are:

1. Direct discrimination;
2. Indirect discrimination;
3. Harassment;
4. Victimisation.

In relation to disability discrimination, there are additional forms of discrimination; discrimination arising from a disability and failure to make reasonable adjustments. These forms of discrimination are covered in further detail in:

DIS3: Disability Discrimination

For further guidance on the most common specific strands of discrimination please see:

DIS2: Guidance: Sex Discrimination

DIS3: Guidance: Disability Discrimination

DIS4: Guidance: Race Discrimination

DIS5: Guidance: Age Discrimination

Direct discrimination occurs when, because of a protected characteristic, an employer treats an employee or job applicant less favourably than they treat or would treat others.

For example, a woman not being considered for promotion because she is pregnant.

An employee or job applicant claiming direct discrimination has to establish/satisfy the burden of proof as follows in order for their claim to be successful:

1. that an actual or hypothetical colleague in the same circumstances as them, but without their protected characteristic, did not or would not have received the same treatment; and
2. that the less favourable treatment was consciously or subconsciously because of their protected characteristic.

Direct discrimination can be by association or perception; for example in relation to a disabled family member of an employee (association) or if an individual is perceived as homosexual (perception), regardless of whether this perception is correct or not.

Indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic.

For example, a dress code which applies to all employees but prevents employees of a particular religion wearing certain items of clothing which their religion requires them to wear.

You may be able to defend an indirect discrimination claim if you can demonstrate that your actions are or were ‘a proportionate means of achieving a legitimate aim’. To do this you must be able to evidence that you had a legitimate aim corresponding to a real business need, and that the policy or practice was a proportionate means of achieving that aim.

Indirect discrimination risks need to be considered when rejecting flexible working requests. For more information see:

F1 – How to guide – Flexible working.

Harassment is defined as unwanted conduct related to a protected characteristic which has the purpose or effect of violating an employee or job applicant’s dignity, or, creates an intimidating, hostile, degrading, humiliating or offensive environment for the employee.

It is common for harassment claims to result from workplace banter or a joke which an individual made not considering or intending it to be offensive, and perhaps at first glance is not related to a particular protected characteristic.

For example: an employee thinks it is inoffensive to say ‘Ooo la la’ whenever a French colleague finishes speaking but his colleague becomes sick of this joke.

Harassment can take the form of a one-off incident or a series of incidents. As with direct discrimination an employee does not need to have the protected characteristic to make a harassment claim.

In addition to harassment relating to one of the protected characteristics, harassment of a sexual nature can also give rise to a claim against an employer. Sexual harassment comes in two forms:

• An employee engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating their colleagues dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for their colleague.
• An employee engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, and the conduct has the purpose or effect of violating their colleagues dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for their colleague and because of their colleague’s rejection of or submission to the conduct, the employee treats them less favourably than they would have had they not rejected or submitted to the conduct.

The victimisation provisions in EqA10 are designed to enable employees to exercise their rights under the Act without fear of repercussions or punishments from their employer. The provisions protect employees or job applicants who do (or might do) “protected acts” such as bringing discrimination claims, complaining about harassment (including by lodging a grievance), or getting involved in some way with another claimant’s discrimination complaint (such as giving evidence). If a person subjects another person to a detriment because, either, they have done a protected act or it is thought that they have done or may do a protected act then this will create grounds for a victimisation claim.

The general rule is that an employee who believes that they have been discriminated against has 3 months from the date of the alleged discriminatory act to submit a claim to the employment tribunal. If the act is part of a series of related acts, the employee has 3 months from the date of the last act to submit a claim.

The tribunal can extend the 3 month period for bringing a discrimination claim if it feels that it is just and equitable to do so.

Compensation for discrimination claims is uncapped and therefore can be potentially costly. Additionally, the employee can bring the claim while still in employment. Costs are broadly split into the following categories:

Compensation for loss of earnings – this is uncapped and can potentially cover a number of years depending on when the employee obtains alternative employment.

Injury to feelings – is calculated on the basis of the level of hurt caused to the individual and is based on what is known as Vento bands. The lower, middle and upper bands of Vento set out the ranges of compensation available, depending on the nature of the discrimination suffered. These bands are reviewed and increased periodically and are subject to the current maximum of £44,000, except in the most exceptional circumstances.

Reputational damage is also a risk with these types of claims.

The steps we recommend to minimise the risk of a claim arising are:

• Putting in place appropriate policies and procedures and drawing them to employees’ attention so that they understand what behaviour will and will not be acceptable;
• Providing training to all employees on the risks of a discrimination claim and what constitutes good and bad practice (please do not hesitate to contact us if you would like details of the training sessions that we can provide);
• Taking appropriate action, i.e. conducting a thorough investigation and putting corrective measures in place, in the event of concerns relating to a protected characteristic being raised; and
• If you are unsure whether any of your policies or practices may be discriminatory please contact us and we can advise on appropriate next steps.

For further information on discrimination in an employment setting and access to our Equal Opportunities policy see: