A guide to discrimination

This brief describes the nine protected characteristics and the four types of discrimination that may lead to a claim for unlawful discrimination in an employment tribunal.

This area of employment law is complex. If a member or representative believes they have a potential discrimination claim they should seek the advice of their organising team or the members’ helpdesk at an early stage because there are relatively strict time limits which apply to when the claim must be made.

Protected characteristics

The Equality Act 2010 brought together a number of older pieces of equality legislation designed to protect various types of vulnerable employees. In doing so it determined that inclusion in one of the following nine groups of protected characteristics would be the only grounds on which a claim for discrimination could be brought before an employment tribunal:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation.

Types of discrimination

There are four specified types of discrimination, each of which is described in brief detail in the sections below. It is important to understand that the terms used have specific meanings in employment law and it should not be presumed that any more general use of these terms in everyday speech is valid for making judgments about the potential for success in legal proceedings.

Direct Discrimination

The definition of Direct Discrimination provides that: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

There must be a causal link. The less favourable treatment must be “because of a protected characteristic.” This is wider than because of B’s own protected characteristic and encompasses associative and perceived discrimination.

Indirect Discrimination

Indirect Discrimination requires that there is a provision, criterion or practice (PCP – in effect a general rule) which is applied to everyone, but which puts workers with a particular characteristic at a particular disadvantage. B must be a part of that group and must be put at that disadvantage.  Finally, the employer cannot justify the use of the PCP as a proportionate means of achieving a legitimate business aim.

Harassment

A harasses B if A engages in conduct related to a protected characteristic and that conduct:

• violates B’s dignity, or
• creates an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding when harassment has taken place an Employment Tribunal must take into account the following:

• the perception of B
• the other circumstances of the case
• whether it is reasonable for the conduct to have that effect.

Victimisation

 As before, A victimises B if A subjects B to a detriment either because:

• B does a protected act, or
• A believes B has done a protected act.

The protected acts are:

• bringing proceedings under this Act
• giving evidence in connection with proceedings under this Act.
• doing any other thing for the purposes of, or in connection with proceedings under this Act
• making an allegation (whether express or not) that A or another person has contravened this Act
• having a conversation about equal pay.