The Equality Act 2010 prohibits discrimination in the workplace on the basis of certain characteristics known as ‘protected characteristics’. These are:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
Discrimination at work can take different forms – this article will cover the following forms:
Is parenting and caring a protected characteristic?
Parenting and caring is not a protected characteristic, but you may be able to rely on sex, pregnancy and maternity or disability discrimination.
See our article on discrimination against parents and carers in the workplace for an overview of common forms of discrimination against parents and carers.
When am I protected from discrimination?
If you are an employee, you are protected from discrimination at all stages of employment, including:
- In recruitment: e.g., in relation to how positions are advertised and how interviews are conducted
- During employment: e.g, in relation to your terms of employment, working conditions opportunities for promotion and transfer or pay
- After employment has finished: e.g., in relation to dismissal appeals, references
Am I protected if I work part time?
Yes, you are protected by the Equality Act if you work part time, but working part time is not a protected characteristic.
There are special rules that protect you if you are treated less favourably because you work part time.
Am I protected if I am self-employed or a worker?
Yes – if you are not an employee, you still may be protected by the Equality Act if you are self-employed or a worker. If you are self-employed or a worker, see our guide to your rights for more details.
Direct discrimination occurs when someone is treated worse than someone else because of a protected characteristic. The Equality Act uses the term “less favourable treatment”. For example, if you are treated less favourably than another colleague because you are a woman, this would amount to direct discrimination.
What is less favourable treatment?
Not all difference in treatment amounts to discrimination. To succeed in a claim for direct discrimination, you must show that you have been treated ‘less favourably’ than a real or hypothetical person in a situation that is not significantly different to your own. In law, this is known as a ‘comparator’.
For instance, if you are claiming sex discrimination as a woman, an appropriate comparator would be a male colleague in a similar position to you. If you do not have any male colleagues, the tribunal will consider how a hypothetical male colleague in a similar situation would have been treated.
The phrase ‘less favourable treatment’ means treatment that puts you in at a ‘clear disadvantage’ compared with others. Examples of less favourable treatment can include dismissal, demotion, or disciplinary action. It can also involve being denied a choice or excluded from an opportunity, such as a promotion or training opportunity.
To claim discrimination, it is not necessary for you to experience actual disadvantage – it is that you would have preferred not to have been treated differently.
What if I am treated less favourably because of someone else’s protected characteristic?
Less favourable treatment because of your association with someone who has a protected characteristic is also a form of direct discrimination.
For instance, if you are treated less favourably because you are associated with someone who has a disability, you may have a claim for direct disability discrimination by association.
What if my employer believes I have a protected characteristic that I don’t have?
It is still discrimination if you are treated less favourably because you are thought to have protected characteristic (with the exception of marriage and civil partnership discrimination).
Even though you do not actually have that protected characteristic, you can still experience discrimination. For instance, if you are heterosexual but your manager thinks you’re homosexual and refuses to invite you to your team’s Christmas party because of your sexual orientation.
Indirect discrimination occurs where an employer has a policy or practice that applies the same to everyone, and may not be intended to treat anyone less favourably, but disadvantages a group of people with a particular protected characteristic.
For instance, it can be indirect sex discrimination where employers have a blanket policy against flexible working, and this has the effect of disadvantaging women with childcare responsibilities (because women continue to bear the burden of childcare responsibilties in society).
Indirect discrimination applies to all protected characteristics except pregancy and maternity – although, discrimination on this basis can often amount to indirect sex discrimination.
What do I need to prove to make a claim of indirect discrimination?
To succeed in a claim for indirect discrimination, you must prove that your employer’s policy or practice disadvantages those with a protected characteristic, you have this protected characteristic, and you are also disadvantaged by the policy or practice.
Your employer can justify the policy or practice by showing that it is a ‘proportionate means of achieving a legitimate aim’. In other words, that the policy or practice corresponds to a real business need, and the employer could not achieve the objective by less discriminatory means. This is a balancing exercise, and depends on the facts of each case.
Harassment is unwanted behaviour that is offensive or hostile, which makes you feel uncomfortable, intimidated or humiliated, on the basis of a protected characteristic. The test is whether the behaviour made you feel that way and whether it is reasonable for you to feel that way.
Unwanted conduct is unlawful under the Equality Act if it is connected to a protected characteristic and has the purpose or effect of:
- violating your dignity, or
- creating an intimidating, hostile degrading, humiliating or offensive environment
Marriage and civil partnership and pregnancy and maternity, are not protected characteristics for harassment purposes. However, unwanted conduct related to these matters could amount to sex or sexual orientation harassment.
Do I need to object to the unwanted conduct?
You don’t need to have objected to something for it to be unwanted. The person harassing you does not need to be aware that their behaviour is unwanted. It can still be harassment even if no-one actually meant to offend you.
Does there need to be more than one incident?
There is no need for there to be a pattern of harassment. A one-off incident, such as a joke, can amount to harassment.
Do employers have a duty to prevent harassment?
Your employer may be responsible for the actions of employees who discriminate, harass or victimise their colleagues in the course of their employment.
Even when the harassment comes from third parties such as customers or clients, your employer may be liable for their actions in response or failure to challenge the behaviour response (e.g., not preventing or stopping the third party), if their action or inaction was because of the relevant protected characteristic.
Do you have to have a protected characteristic to suffer from harassment?
You do not need to have a relevant protected characteristic to suffer harassment. You are also protected against harassment where unwanted comments are directed towards you and are related to:
- someone else’s protected characteristic (associative harassment); or
- the perception that you have a protected characteristic.
For example, if a colleague makes unwanted jokes towards you, because they think you have a disability (even though you do not) or because someone else, like a family member, has a disability then you may have a claim for harassment related to disability.
Victimisation occurs when someone is disadvantaged or punished because they have complained (or intend to complain) about discrimination or harassment in the workplace, or because they helped someone who has been discriminated against.
The legal terminology is that victimisation occurs where an employee is disadvantaged because of a ‘protected act’.
What is a protected act?
Protected acts include:
- bringing a claim under the Equality Act
- giving evidence or information in connection with a claim under the Equality Act
- doing any other thing for the purposes or in connection with the Equality Act
- alleging that another person has violated the Equality Act
What to do if you experience discrimination, harassment or victimisation
If you believe your employer has treated you unfairly, you can consider taking the following steps. You can also contact us for advice.
Try to resolve the issue
Speak to your employer in the first instance and try to resolve things informally. Try to keep communications friendly if you can. It can sometimes be more effective if you focus on solutions and the way forward, rather than the things you are unhappy about.
Often, employers can become defensive if accused of discrimination, but you can say if think you are being treated unfairly because of a protected characteristic.
Raise a grievance
If the discussions with your employer don’t resolve the issue, or you think your employer has treated you very unfairly and the relationship is breaking down, you can consider raising a grievance. You can find more information in our article on grievances.
Raising a grievance is important if you think you might later raise a claim in the Employment Tribunal because failure to follow internal resolution methods can disadvantage your claim.
It is advisable to try and resolve things amicably, as formal processes can damage your relationship with your employer. For some legal insight into grievances and tips on how to engage with your employer before it reaches this point, see our article on grievances do more harm than good.
Your employer should not ignore your grievance, fail to hear it within a reasonable time or reject it out of hand (as doing so could amount to a breach of your employment contract). However, your employer is not obliged to uphold your complaint.
If you are unhappy with the outcome of your grievance, you should normally be able to appeal it; the procedure will be set out in your employer’s grievance policy. If you are unhappy with the outcome of the appeal process, you can contact us for advice.
Make a claim in the Employment Tribunal
If the above steps do not resolve the matter you could bring a claim in the employment tribunal.
Proving discrimination claims can be difficult: the discrimination is rarely made explicit. Most employers will not actually say: ‘the reason why I’m dismissing you is because of your protected characteristic’. So it is necessary to produce evidence to prove the real reason for the treatment so that the Tribunal can infer from the facts what really happened.
The Tribunal will follow a two stage ‘burden of proof’ test. Firstly, they decide whether you have provided sufficient proof that an act of unlawful discrimination has taken place. Then, the burden of proof will shift to your employer to provide a non-discriminatory explanation for their actions.
Tribunal claims can be expensive and long, and there is no guarantee of success, so this step should be considered cautiously. It is often best to try to resolve the issue with your employer.
If you are considering bringing a claim, you can contact us for advice.
Frequently asked questions
I’m pregnant and my manager made remarks about my weight and hormones
Unless your job requires certain physical attributes and capabilities (which would be unusual), comments about your weight are not appropriate.
Assuming your weight is irrelevant to your job, you are receiving unwanted conduct as a consequence of your pregnancy and as a result this has created a degrading and humiliating environment for you or you may feel that your dignity has been violated.
While pregnancy is not a protected characteristic for the purpose of harassment claims, you can bring a claim for harassment relating to sex against your line manager and/or your employer.
I’m pregnant and last week, my manager wrote on social media that women who start jobs immediately after becoming pregnant are just after their employer’s money
In this case, the manager has engaged in conduct that is unwanted which has created an offensive environment. This may amount to harassment.
Claims cannot be made for harassment on the basis of pregnancy. Howveer, this may constitute harassment on the basis of sex.
Additionally, if your employer treats you less favourably based on your pregnancy, this could constitute direct discrimination.
I work in a bar and am pregnant. A regular customer started patting my stomach, which I find offensive, but my manager said I should just laugh it off
The patting of your stomach by the customer is clearly unwanted behaviour and has created an offensive environment for you. While a claim for harassment cannot be brought for pregnancy, this could constitute harassment on the basis of sex.
As your employer knows about the harassment and has not taken reasonable steps to prevent it, they may be liable for the harassment by the customer. You must show that their failure to prevent the harassment relates to a protected characteristic such as your sex.
In this case it may be arguable that your employer’s failure to take action stems from the perception that you are female and are therefore oversensitive. In this case it may be arguable that your employer’s failure to take action stems from the perception that you are female and are therefore oversensitive.
I’m a father and I am taking Shared Parental Leave. My employer is teasing me and making jokes about how I don’t wear the trousers in the relationship.
Your employer’s comments constitute unwanted conduct as a consequence of your intention to take Shared Parental Leave and as a result this seems to have created an intimidating and humiliating environment for you.
While paternity is not protected characteristic, you can bring a claim for harassment relating to sex against your employer.
I’m in a same sex couple and my partner and I are going to be having a child. We have decided it will be me who will become pregnant. My manager is constantly nagging me saying it should be my partner that carries the baby.
Your line manager’s comments constitute unwanted conduct as a consequence of your intended pregnancy and this seems to have created an intimidating and hostile environment.
While pregnancy is not a protected characteristic for the purpose of harassment claims, you can bring a claim for harassment relating to sex against your line manager and/or your employer or you may be able to bring a claim related to sexual orientation.
I have a disabled child. A very senior member of staff in my organisation has been being really awful to me and regularly seems to be impersonating someone with a disability when we cross paths.
Employees are protected against harassment based on someone else’s protected characteristic (associative harassment). This means that as the senior staff member is behaving in a way that is unwanted seemingly towards you which is causing an offensive environment for you, you are the victim of harassment related to disability (the disability of your son). As a result you can bring a claim for harassment related to disability against just your employer or the employer and staff member.
I’m female and work in a very male dominated environment and have requested flexible working. They’ve rejected my request saying “we don’t do flexible work, if you want to work part-time go elsewhere.”
As not working flexibly appears to be a policy applied to everyone, male or female, this is unlikely to constitute harassment based on the grounds of sex. However, if it is the case that this policy disproportionately disadvantages women in comparison to men, then this may be an instance of indirect discrimination relating to sex.
Currently the burden of childcare falls more on women than men in society, so the policy of not allowing flexible working is going to disadvantage women more than men. This is therefore indirect discrimination unless your employer can demonstrate a good business reason for not allowing flexible working.
Your employer may also be violating the statutory right to request flexible working, if they do not properly consider flexible working requests.
My partner and I are in the process of adopting. My boss said that he’s assuming I won’t be returning to work because my child will have so many psychological problems.
Your employer’s comments constitute unwanted conduct which relates to your intention to adopt children and as a result this seems to have created an offensive environment for you. Adoption leave, like maternity leave, is not a protected characteristic but you may be able to bring a claim for harassment relating to sex against your employer if the comments are based on a stereotypical assumption that you will not return to work because of your gender.