Direct Vs Indirect Discrimination In The Workplace

Under the Equality Act 2010, discrimination is classified as either direct or indirect.

As a business owner, understanding the difference between the two is essential if an employee files a claim against you.

This distinction will help you prepare your defence and ensure that your business policies do not encourage discrimination.

There are also other types of discrimination claims that can arise under the Equality Act, such as:

• Harassment
• Victimisation
• Sexual harassment
• Failure to make reasonable adjustments for disabilities
• Discrimination due to disability
• Protections for fixed-term and part-time workers

Direct Discrimination

Direct discrimination happens when someone is treated less favourably because of a protected characteristic, such as race, sex, or disability.

It can also happen if they are wrongly assumed to have a protected characteristic or because they are associated with someone who does.

For example:

• An employer rejects an applicant with an African-sounding name, assuming they are Black. This is direct discrimination by perception.
• A worker is treated unfairly because they are friends with a person who is gay. This is direct discrimination by association.
• A pregnant employee has her duties reduced after informing her employer of her pregnancy. This is direct pregnancy and maternity discrimination.

Indirect Discrimination

Indirect discrimination occurs when a rule or policy applies to everyone but disadvantages a group of people who share a protected characteristic.

It can be harder to spot because it is less obvious.

For example:

• A rule against remote working could indirectly discriminate against disabled employees who need this adjustment.
• A dress code banning religious clothing like hijabs or turbans could indirectly discriminate against people with certain religious beliefs.

Protected Characteristics

The Equality Act 2010 protects people from discrimination based on these characteristics:

• Gender reassignment
• Pregnancy and maternity
• Age
• Marriage or civil partnership
• Disability
• Religion or belief
• Sex
• Sexual orientation
• Race, including colour, nationality, and ethnic or national origin

Discrimination by Association

Discrimination by association occurs when someone is treated unfairly because they are linked to a person with a protected characteristic.

For example:

• An employee is excluded from work events because their friend has undergone gender reassignment. This could be discrimination by association.

Discrimination by Perception

Discrimination by perception happens when someone is treated unfairly because others mistakenly believe they have a protected characteristic.

For example:

• A colleague is teased and insulted because their co-workers believe they are gay. This is discrimination by perception, even if the person is not gay.

Unintentional Discrimination

Discrimination doesn’t have to be deliberate to be illegal.

Even if an employer didn’t intend to discriminate, they can still face a claim if their actions had a discriminatory effect.

If a case reaches an employment tribunal, the tribunal will review the employer's actions and intentions.

Justifying Discrimination

In some cases, discrimination can be justified if it is necessary to achieve a legitimate aim.

A legitimate aim could relate to health and safety or business efficiency.

For example:

• A hospital may require a surgeon to have ten years of experience to ensure patient safety. This could be considered a legitimate aim.

The justification must be proportionate and reasonable. If there is a less discriminatory way to achieve the same aim, it may be harder to justify.

Victimisation

Victimisation occurs when someone is treated unfairly for making a discrimination complaint or supporting someone else’s complaint.

Examples of victimisation include being denied a promotion or being excluded from work activities after filing a complaint.

Preventing Discrimination in the Workplace

As a business owner, you should take proactive steps to prevent discrimination.

This includes:

• Ensuring all staff understand their rights and responsibilities
• Promoting diversity and inclusion through policies and training
• Creating a clear process for reporting discrimination

Following the Acas Code of Practice on disciplinary and grievance procedures can help ensure fairness.

All company policies, including dress codes, flexible working, and recruitment, should be checked to ensure they do not discriminate against anyone.