Mental Health Awareness Week 2023
April 26 2021Read more
You have a responsibility to make sure your staff feel safe and comfortable in the workplace.
That means more than just health & safety. You also need to protect them from bullying, harassment, and discrimination.
Discrimination creates a hostile work environment, impacts employee wellbeing, and increases absenteeism.
What’s more, if you don’t take steps to stop it, you can be taken to an employment tribunal. There’s no cap on the amount of compensation that can be awarded in discrimination cases, meaning you can’t ignore the issues.
There are many different types of discrimination; we’ve detailed them all in this article to help you recognise them and stop them occurring in your workplace.
The Equality Act 2010 explains that discrimination is unfair treatment of someone with one of the nine protected characteristics:
Discrimination against these characteristics can occur in many ways. And you must protect your staff from them all.
Direct discrimination is when someone is treated unfairly because of a protected characteristic.
Because of the nine protected characteristics, direct discrimination can come in many different shapes.
For example, refusing to hire a woman for a role would be sex discrimination, and bullying an employee because of their nationality would be racial discrimination. But both would fall under the umbrella of direct discrimination.
Indirect discrimination is where managers decisions or company policies negatively impact a group of people with a protected characteristic.
This could be where an employer tries to enforce a new dress code. Strict dress codes are more likely to affect people with religious beliefs.
Direct and indirect discrimination are easily confused. The distinction between the two is that direct discrimination is the act of an employer or employee discriminating against an individual. Whereas indirect discrimination is where a decision impacts a group of people because of a shared protected characteristic.
Cases of indirect discrimination must be able to prove that the policy can’t be objectively justified. This means that employers can make rules that might be seen as discriminatory if they can show a justification, such as health & safety.
Harassment is unwanted conduct related to a protected characteristic. It has the purpose or effect of either:
The unwanted conduct doesn’t need to be intentional for it to be deemed harassment in the eyes of the law. Offensive jokes or workplace gossip can be seen as harassment.
If an individual believes someone’s actions meet any of the above criteria, they can seek to bring a claim.
An employee can also receive unfair treatment for making a discrimination claim.
Victimisation is where someone is treated unfairly because they have made a discrimination claim or complained about harassment.
Employees are also safeguarded from being treated unfairly if someone believes they have done, or may do a protected act.
The Equality Act protects those with disabilities from the four types of discrimination listed above. But there’s also prohibited conduct specific to prevent disability discrimination.
Discrimination arising from disability is when someone is treated unfairly because of a consequence of their disability, rather than the disability itself.
For example, the need for regular rest breaks or needing reasonable adjustments made to their workstation.
Although these needs are caused by the person’s disability, this wouldn’t be classed as direct discrimination.
These are the main forms of discrimination, but there’s also ways that an individual can be discriminated against despite not meeting any of the protected characteristics.
Discrimination by perception is when someone is treated unfavourably because others believe they possess a protected characteristic - even if they don’t.
This can be refusing to hire someone because you assume they’re Muslim due to their name, or bullying someone because you wrongly assume their sexuality.
Anyone can be subjected to perception discrimination. And anyone can make a discrimination claim even if they don’t possess a protected characteristic.
Associative discrimination is a form of direct discrimination. It refers to discrimination based on someone’s association with another person possessing a protected characteristic.
There are many situations where discrimination by association can occur. For example, a parent of a child with a disability might be treated less favourably because of perceived care responsibilities.
Positive discrimination is when you recruit a person because they have a relevant protected characteristic rather than because they’re the best candidate.
There are limited circumstances where it’s lawful to require a job applicant or worker to have a particular protected characteristic, for example, where an occupational requirement applies.
Equality and Human Rights Commission guidance gives the example of a women’s refuge requiring all members of staff to be women.
However, positive action is legal.
Positive action is where you take steps to improve equality in the workplace. For example, placing job adverts to target particular groups or offering training to people with particular needs.
The difference between positive action and positive discrimination is that positive discrimination would place an under-qualified person in a role because of protected characteristics. Whereas positive action seeks to find qualified people from underrepresented groups.
It’s your responsibility to protect your employees’ wellbeing at work. If you don’t, you could face legal consequences, have to pay heavy fines and see good employees leave.
Providing confidential whistleblowing support will allow your staff to raise concerns and get the support they need to tackle difficult situations at work. Our Helpline is available 24 hours a day, 365 days a year; with multi-lingual support and fully trained counsellors ready to help.
Want to find out more? Book a free consultation with one of our wellbeing consultants. Call 0844 891 0353 for help on promoting health and wellbeing at work.
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