Discrimination at work

Your employees have a right to feel safe at work. One way that violates this and creates a hostile work environment for them, is discrimination.

This can have a massive effect on workplace wellbeing, resulting in higher absences and lower productivity.

Ensuring you have a safe and equal workplace is not only a moral prerogative, but a legal one.

It is obvious that discrimination at work will really affect morale. But there is also legislation in place that protects employees. This is from both their employers and peers.

Failure to adhere to this legislation can destroy productivity and land you with an unlimited fine from the government.

Let’s look at discrimination laws in the UK and how to avoid breaking them in your workplace.

What is discrimination?

It is where someone is treated differently and unjustly because of who they are or certain characteristics they possess.

It’s unlawful for you, or anyone in the business, to directly or indirectly treat someone differently because of these.

The Equality Act 2010 outlines these laws and aims to promote equality in the workplace.

Read our article: Equality in the Workplace: Employer Responsibilities

There are nine protected characteristics detailed in the legislation. The nine characteristics are:

• Age.
• Gender.
• Race.
• Disability.
• Religion.
• Pregnancy and maternity.
• Sexual orientation.
• Gender reassignment.
• Marriage and civil partnership.

Effects of discrimination in the workplace

The targets of such unfavourable behaviour can suffer poor mental and physical health risks.

Burden and stress caused by discrimination in the workplace can take a significant toll physically and mentally. Both in and outside of work.

For example, people who experience discrimination may be at increased risk of physical health conditions, including cardiovascular disease and obesity.

Mental effects on the employee can include depression, developing anxiety disorders, loss of self-control leading to the employee becoming hostile or even attempting suicide.

One study that clearly shows this in the UK is through age discrimination. The findings revealed that a quarter of over-50s claimed they had been unfairly treated because of their age.

The victims of ageism were said to be more likely to suffer health problems or develop them over time – suggesting a link between age discrimination and ill health.

Discrimination can damage someone even if they haven’t been the target of overt acts of bias. Regardless of your personal experiences, it can be stressful just being a member of a group that is often discriminated against.

Mental health and discrimination

By looking after your employees’ mental wellbeing, you are helping safeguard them against mental health discrimination.

This is because the law views mental illness as a disability under certain circumstances.

Under the Equality Act, a disability means a physical or a mental condition which has a substantial and long-term impact (lasting or will last over 12 months) on your ability to do normal day-to-day activities.

With disabilities, the law expects you to make reasonable adjustments to help them. If not, they can find you guilty of discrimination.

Tribunals can make a declaration order, award compensation, and/or make a recommendation that you take steps to remove or reduce the adverse effect of the unlawful act on the complainant.

Our wellbeing and EAP services are great ways to not only support your employees, but also stay compliant.

Types of discrimination

While you can discriminate on the nine protected characteristics, employment law breaks these down further.

Here are the different types of discrimination:

Direct discrimination

There will only be direct discrimination if an employee is treated less favourably than someone else has been, or would be, in comparable circumstances. Direct discrimination can never be justified, no matter how well-intentioned the motive.

Indirect discrimination

Indirect discrimination occurs when a provision, criterion or practice (PCP) is applied universally, and that PCP:

• Puts, or would put, a group of people who share a protected characteristic at a particular disadvantage compared to people who do not, where there is no material difference in each case.
• The PCP causes an individual employee a disadvantage.
• Cannot be shown as a proportionate means of achieving a legitimate aim.

Harassment

Workplace harassment is unwanted conduct based on a person’s protected characteristic.

Victimisation

When an employee suffers detriment because they’ve called out discrimination in the workplace formally or informally.

Victimisation can also occur when someone is treated unfairly for supporting or representing a person who has brought a claim of discrimination.

When is discrimination lawful?

Many people believe that positive discrimination is lawful. That you hire a person from a different background, solely based on that reason. However, positive discrimination is usually unlawful.

Positive action is the legal alternative to positive discrimination. It’s where an organisation lawfully uses a protected characteristic as the foundation for making a number of business decisions that benefit an individual, or group of individuals, with that characteristic.

Taking this action is permitted if the reason behind it is to increase the number of people with a particular protected characteristic, in an effort to promote equality.

However, to legally implement positive action, employers will need to be able to show that people with that characteristic are under-represented, have different needs, or have historically been disadvantaged in employment.

It is not permitted to exclude any job applicant from employment opportunities because they do not possess the protected characteristic in question though.

There is also objective justification. This is where an employer can show any preferential actions are a proportionate means of achieving a legitimate aim.

For example:

• Allowing flexible working agreements for working parents.
• Having physical tests for the job, which disadvantages older applicants, because it is necessary to carry out the job.
• Only hiring baptised Catholics for a role teaching scripture at a Roman Catholic school.

You must show that the less favourable treatment was appropriate and necessary.

How to challenge discrimination at work

You can discriminate against someone even if you do not intend to, so you should have measures in the workplace to avoid this.

You can help prevent discrimination in the workplace by steps including:

• Having an EAP.
• Having an up-to-date equality policy.
• Providing regular anti-discrimination training to staff.
• Making it clear how staff can complain if discrimination happens.
• Regular one-to-one catch-ups between employees and their line managers, to help build positive working relationships.

With the right systems in place, you'll find that not only can you prevent discrimination, but you can also cultivate a strong company environment.