Although we all hope we’ll never experience discrimination in the workplace, unfortunately it can and does happen.
Thankfully, there are rules in place, enacted by law, to prevent workplace discrimination and provide those who experience it with the tools to address it.
Discrimination can happen at any point in your professional journey, including with regards to:
- Recruitment
- Pay, terms and conditions of employment
- Sickness absence
- Opportunities for promotion
- Training opportunities
- Unfair dismissal
- Redundancy
To protect individuals from experiencing discrimination in both their professional and their personal lives, the Equality Act was set up.
The Equality Act (2010)
Introduced in October 2010 and bringing together over 116 pieces of legislation, the Equality Act is designed to promote equality, prevent discrimination and protect the rights of individuals. Government guidance on the Equality Act 2010.
The Act’s main aim is to protect people from discrimination, harassment and victimisation. By providing an actionable legal framework, it protects our rights and advances equal opportunities for all.
Who does the Equality Act (2010) protect?
It protects everyone, but there are a number of personal attributes related to identity that the Act explicitly addresses. They’re known as protected characteristics.
These characteristics are a fundamental part of a person’s identity, and they’re safeguarded in the Act to make sure no one is treated unfairly based on these aspects.
The characteristics protected by the Act are:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
What does the Equality Act look like in practice?
The Act is in place to help people recognise harmful behaviour and correct it so as not to offend, upset or discriminate against another person. This can look like:
- Equal treatment
In practice, this means all individuals should be treated equally regardless of their race, gender, religion, sexual orientation, or any of the other protected characteristics listed above.
- Reasonable adjustments
The Act requires that reasonable accommodations are made for those with disabilities or specific needs. This can include supporting physical accessibility, adjusting work schedules, or providing assistive technology to ensure everyone can access services or facilities.
- Anti-harassment and bullying
The Act also serves to protect people from being harassed or bullied based on any of the protected characteristics (listed above).
What is disability discrimination?
Before we delve into disability discrimination, it’s important to understand what ‘disability’ actually means and looks like.
The Equality Act’s definition of disability applies to anyone who: has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Types of discrimination (and what they look like)
The Equality Act (2010) lists four main types of discrimination: direct, indirect, harassment, and victimisation.
Within the Act, there are two additional types of discrimination relating solely to the protected characteristic of disability: discrimination arising from a disability, and failure to make ‘reasonable adjustments’.
We’ll explore each type of discrimination in more detail below.
Direct discrimination
This type of discrimination can fall into one of three categories:
- Direct discrimination
If someone is treated less favourably due to their disability, this is known as direct discrimination. - Direct discrimination by association
If someone is treated less favourably because a person they’re associated with – such as a friend, family member or colleague – has a disability, this is known as direct discrimination by association. - Direct discrimination by perception
If someone is treated less favourably because they are believed to have a disability, whether this is the case or not, this is known as direct discrimination by perception.
What does direct discrimination look like?
Direct discrimination can take many forms. If you have a disability and experience any of the following situations, this could be an example of direct discrimination:
- Being turned down for a job, or being dismissed because of your disability
- Having a promotion or additional training withheld because of your disability
- Having poorer terms and conditions in your contract, or having fewer contractual benefits because of your disability
Indirect discrimination
Indirect discrimination is usually less obvious than direct discrimination, and is often unintentional.
In the workplace, this is where an employer brings in a rule or process that applies to all employees or job applicants, but puts those who share a certain protected characteristic (such as disability) at a disadvantage. These rules, processes or requirements can be expressed in writing or verbally.
Examples can include:
- Recruitment selection criteria
- Contractual benefits
- A redundancy scoring matrix
- Any other workplace practice
The only way this can happen and not be considered indirect discrimination is if the employer can justify their decision(s).
Indirect discrimination is justified if the employer can prove it is ‘a proportionate means of achieving a legitimate aim’. However, this can be difficult to prove as two criteria need to be met:
- There is a legitimate aim
This needs to be a good business reason behind the decision made (often ‘cost’ is not considered a good enough reason).
- The actions taken are proportionate, appropriate and necessary
The employer will also need to consider alternative ways of achieving the same aim that would be less discriminatory, and be able to show that the decision-making process has been fair and reasonable.
Harassment
Harassment is defined as ‘unwanted conduct’ and must be related to one of the previously mentioned protected characteristics, for example disability.
Behaviour is considered to be harassment when it has the purpose or effect of harming a person’s dignity or creating a working environment that is:
- Intimidating
- Hostile
- Degrading
- Humiliating
- Offensive
Harassment can take many forms, but often looks like:
- Bullying
- Using insensitive nicknames
- Making threats
- Asking intrusive or inappropriate questions
- Excluding or ignoring someone (e.g. not inviting someone to meetings or events)
- Making insults
- Making unwanted or offensive jokes and comments
- Creating unwanted gossip that the person finds offensive
Whilst some people will attempt to pass such behaviour off as ‘banter’, this is not a valid defence or justification for their offensive behaviour.
Harassment doesn’t only impact the person on the receiving end of the insults; it can impact those around them, too. Where this is the case, another employee who has witnessed such behaviour can make a complaint of harassment even if they don’t share the same protected characteristic as the person being harassed.
Victimisation
Victimisation happens when an employee is treated differently or unfairly because they have spoken out against workplace discrimination. This can include:
- Making an allegation of discrimination
- Supporting someone else who has made a complaint of discrimination
- Giving evidence that relates to a complaint about discrimination
- Raising a grievance based on inequality or discrimination
Victimisation can also happen when it is believed that an employee has done one of these things, or that they’re likely to do so in the future, even if this isn’t the case.
Those who make or support an allegation of discrimination or victimisation are protected under the Equality Act, even if the information or evidence they give proves to be inaccurate. The only time this wouldn’t be the case is if they give support, information or evidence in bad faith (i.e. maliciously).
Discrimination arising from a disability
Discrimination arising from a disability occurs when someone is treated unfavourably not because of their disability itself, but because of something linked to their disability.
Those who experience this behaviour and make a complaint about it do not need to compare their treatment to how anyone else is being treated.
Examples of things linked with a disability might include:
- Being off work due to illness
- Problems with movement
- Difficulties with reading, writing, talking, listening, or understanding
Language plays a key role in disability discrimination law, and the terms ‘unfavourably’ and ‘less favourably’ are used carefully.
- ‘Less favourably’ is used where someone submitting a complaint of direct discrimination would have to compare the way they’ve been treated to the way other people, without a disability, are treated.
- ‘Unfavourably’ is used where the person experiencing discrimination arising from a disability suffers a ‘disadvantage’ – but they do not have to compare their treatment to someone else’s.
Much like with indirect discrimination, claims of discrimination arising from a disability will be successful if the person the complaint is logged against can’t objectively justify the unfavourable treatment (as ‘a proportionate means of achieving a legitimate aim’).
However, unlike with indirect discrimination, the person making the complaint doesn’t need to show that others with the same protected characteristic (i.e. disability) are disadvantaged; they only need to show that they themselves are disadvantaged.
Claims of discrimination arising from a disability are even more likely to succeed where the unfavourable treatment could have been avoided if the employer had made ‘reasonable adjustments’.
Failure to make ‘reasonable adjustments’
Failure to make ‘reasonable adjustments’ is one of the most common types of disability discrimination.
A ‘reasonable adjustment’ is a change made to the working environment, or working processes, that will help a disabled employee to fulfil the duties of their role more easily, without being at a disadvantage.
In the recruitment process, this is also extended to job applicants living with a disability.
