What is discrimination?
If you run your own business, you probably already know that you are legally required to avoid and prevent discrimination while doing so. However, exactly what discrimination is can be difficult to understand and this may put you at risk of legal action.
The law relating to discrimination is set out in the Equality Act 2010. Discrimination can generally be described as treating an individual differently and putting them at a disadvantage because of what is known as a ‘protected characteristic’.
The law says that people must not be treated differently because of:
- Age
- Disability
- Sex
- Marriage or civil partnership
- Pregnancy or maternity leave
- Race, including their nationality, skin colour or ethnic or national origins
- Religion or other strongly-held belief (or lack thereof)
- Sexual orientation
- Undergoing, having undergone or planning to undergo gender reassignment.
Discrimination can generally be described as treating an individual differently and putting them at a disadvantage because of what is known as a 'protected characteristic'.
When running a business, you must ensure that you do not discriminate against employees, potential employees, or customers. There are a large number of things to take into consideration in this area, and a number of different ways in which you may inadvertently discriminate against people.
Types of discrimination
Under the Equality Act 2010, there are several different types of discrimination, as described below.
Direct discrimination
Direct discrimination is when people are subject to ‘less favourable treatment’ because of one of the protected characteristics listed above. If someone is paid less or passed over for promotion simply because they possess a protected characteristic, this is a clear case of direct discrimination.
Indirect discrimination
Indirect discrimination is when everyone is treated the same way, but people with a protected characteristic are put at a disadvantage because of it. For example, if a policy states that all employees must work one Sunday per month, this could amount to religious discrimination against Christians due to Sunday being their day of worship and rest.
In relation to employees with a disability, there is a particular type of indirect discrimination which is where the employer has treated them less favourably for a reason arising from their disability. For example, an employer does not pay a bonus to an employee because of previous high levels of sickness absence that were related to a disability.
You should always consider whether new policies or practices in the workplace could indirectly disadvantage people.
Because some discrimination may be less obvious, you should always consider whether new policies or practices in the workplace could indirectly disadvantage people with particular protected characteristics.
It is possible for you to defend an indirect discrimination claim if you can establish that the act of discrimination was a ‘proportionate means to achieve a legitimate aim’, this means that you can show that it was reasonable for you to apply the policy in the particular circumstances of the situation.
Harassment
Harassment is when a person with a protected characteristic is subject to ‘unwanted conduct’ in the workplace because of it. This essentially means a person being treated differently by others because of that characteristic – for example, a woman experiencing unwanted advances or sexual comments from male colleagues.
As an employer, you are responsible for handling any harassment issues which you are aware of or which are brought to your attention, and could face legal action if you fail to act. You may also be liable for acts of your employees, so you should also ensure that you have a policy on equality and diversity that all employees are made aware of and trained on and that you punish any breaches of that policy consistently and firmly.
Harassment is when a person with a protected characteristic is subject to ‘unwanted conduct’ in the workplace because of it.
Victimisation
Victimisation occurs when someone faces less favourable treatment because they have previously made an allegation of discrimination under the Equality Act, or supported a claim by someone else. Individuals should not be mistreated at work because they have taken legal action, and if they are then they will be eligible to make further claims.
Duty to make reasonable adjustments (relating to disabilities only)
Where you employ an employee who has a disability you are under a duty to make sure that you make any reasonable adjustments to the workplace, practices or facilities that place the employee at a disadvantage. If you fail to make that adjustment, the employee can pursue a claim of discrimination on this basis.
Whether an adjustment is reasonable depends on the circumstances of the situation and the employer and things such as the financial impact, the practicality of the adjustment and the size and resources of the employer will all be considered.
For example, an employer who has an employee who has mobility problems and cannot work at their desk which is on the second floor may relocate the employee to the ground floor.