Discrimination & Equal Opportunities - Understanding Your Obligations as an Employer

The Equality Act 2010

Before the Equality Act 2010 came into force, UK discrimination law was a patchwork of separate statutes covering race, sex, disability, religion, sexual orientation and age — each with its own rules and quirks. The Equality Act swept most of that away and replaced it with a single, consolidated framework. For employers, that consolidation was welcome. What wasn't quite so welcome was the scope of the Act itself, which extended and strengthened protection in a number of areas.

At its core, the Act makes it unlawful to discriminate against someone because of a 'protected
characteristic'. There are nine of them, and together they cover a substantial proportion of your workforce and your applicant pool.

The Nine Protected Characteristics

The table below sets out each protected characteristic with a brief note on scope. Don't be misled by the brevity, the practical application of each one can be complicated.

Combined Discrimination

The Equality Act 2010 includes a provision (s.14) for 'dual characteristics' discrimination — where someone is treated less favourably because of a combination of two protected characteristics, such as race and sex. This provision has never been formally commenced by Parliament, so is not currently in force. That said, employment tribunals can often address such claims through careful pleading of the individual characteristics.

Types of Discrimination

The Act identifies four main forms of prohibited conduct. Understanding the distinctions matters because the legal tests and the defences available to you are different for each.

Direct Discrimination

Direct discrimination occurs when someone is treated less favourably than another person because of a protected characteristic. The classic example: you don't shortlist a candidate because she's pregnant. Or you pass over a promotion candidate because he's in his late fifties. The comparator — the person you compare the treatment against — must be someone in materially the same circumstances but without the protected characteristic.

There is no defence to direct discrimination based on most protected characteristics. You cannot justify it, however commercially convenient it might seem. The only exceptions are age (where a difference in treatment can be justified if it is a proportionate means of achieving a legitimate aim) and, in very narrow circumstances, where a genuine occupational requirement applies.

Common trap: 'It wasn't intentional'

Direct discrimination does not require discriminatory intent. If the effect of a decision is less
favourable treatment on grounds of a protected characteristic, the motive is irrelevant. Saying 'I didn't mean anything by it' will not help you at tribunal.

Indirect Discrimination

Indirect discrimination is subtler and often catches employers off guard. It arises where a provision, criterion or practice (PCP) — a rule, policy or requirement — applies equally to everyone but puts a group sharing a protected characteristic at a particular disadvantage, and the individual claimant is also disadvantaged by it.

A typical example: you insist all employees work a set Monday to Friday, 9-to-5 schedule with no flexibility. That applies to everyone on paper. In practice, it is more likely to disadvantage women, who statistically carry a disproportionate share of childcare responsibilities. If a female employee is dismissed for refusing those hours, she may have an indirect sex discrimination claim.

Unlike direct discrimination, indirect discrimination can be justified — but only if the PCP is a
proportionate means of achieving a legitimate aim. 'We've always done it this way' is not a legitimate aim. Operational necessity, properly documented and evidenced, might be.

Harassment

Harassment under the Equality Act (s.26) means unwanted conduct related to a protected characteristic that has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The classic example is racial or sexual 'banter' — remarks that the perpetrator sees as harmless but the recipient finds offensive.

Two things are worth noting. First, the effect test is partly subjective — tribunals take into account the claimant's perception as well as whether it was reasonable for them to be affected in that way. Second, a single serious incident can amount to harassment; it doesn't require a pattern of behaviour.

Victimisation

Victimisation occurs when an employee is subjected to a detriment because they did a 'protected act' — making a complaint under the Equality Act, giving evidence in proceedings, or raising a grievance about discrimination. If you discipline or dismiss someone because they complained about harassment, that victimisation claim will be at least as serious as the original complaint.

Critical risk: Retaliation after complaints

Employees who have raised discrimination complaints — however informally — should be treated with scrupulous fairness thereafter. Any adverse action against them within a period following the complaint will be scrutinised closely by a tribunal. 'Coincidence' of timing is rarely convincing.

Disability Discrimination

Disability sits in a category of its own within the Act, for two reasons. First, the definition of disability is broader than most employers assume. Second, the duty to make reasonable adjustments creates positive obligations that go beyond simply not discriminating.

What Counts as a Disability?

Under s.6 of the Equality Act, a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Each element of that definition matters:

• Physical or mental impairment — includes physical conditions, mental health conditions, learning disabilities, and sensory impairments. There is no list of qualifying conditions, though cancer, HIV, and multiple sclerosis are deemed disabilities from diagnosis, and severe disfigurement from the date it occurs.

• Substantial — more than minor or trivial. The Equality Act 2010 (Disability) Regulations 2010 provide guidance on factors to consider.

• Long-term — has lasted, or is likely to last, at least 12 months, or is likely to last for the rest of the person's life.

• Normal day-to-day activities — assessed without the effect of any medication or other treatment the  person is taking. So if someone's depression is managed by medication but would be substantially limiting without it, they may still be disabled under the Act.

Episodic conditions — such as epilepsy, bipolar disorder, or Crohn's disease — qualify if they would be likely to have a substantial adverse effect when they occur. Conditions in remission, including some cancers, can also qualify.

The Duty to Make Reasonable Adjustments

Where a PCP, physical feature, or absence of an auxiliary aid puts a disabled person at a substantial disadvantage compared to non-disabled people, you must take reasonable steps to avoid that disadvantage. This is not a discretionary best effort — it is a legal duty.

What is 'reasonable' depends on factors including the size of your organisation, the financial cost of the adjustment, and whether it is operationally practical. A small business may not be expected to install a lift; a large one might well be. Common adjustments include:

• Flexible or reduced working hours
• Working from home or a different location
• Providing specialist equipment
• Adjusting performance or attendance targets during periods of ill health
• Reallocation of duties that the employee cannot perform
• Phased return to work after illness

Also watch for: Discrimination arising from disability

Under s.15 of the Act, an employer also commits discrimination if it treats a disabled employee
unfavourably because of something arising in consequence of their disability — unless that
treatment can be objectively justified. Dismissing someone for disability-related sickness absences, without considering adjustments first, is the textbook example.

Discrimination in Recruitment

Discrimination claims don't require an employment relationship — job applicants have exactly the same protections as employees. Every stage of the recruitment process is a potential liability.

Job Adverts

An advert that uses language which would discourage applications from a protected group can amount to unlawful indirect discrimination — or in some cases, direct discrimination. References to 'a young, dynamic team', 'recent graduates', or 'native English speakers' all carry risk. Job descriptions should be based on the genuine requirements of the role. If a qualification or experience requirement would screen out a particular group, ask whether it is truly necessary.

Interviews and Selection

Interview questions touching on protected characteristics are a well-known minefield, but the risk goes further. You can't ask about pregnancy or family planning intentions, and under the Equality Act 2010 (s.60), you generally cannot ask about health or disability before making a job offer. The only permitted pre-offer health enquiry is to ask whether adjustments are needed for the selection process itself.

Assessment criteria must be applied consistently across all candidates. If you make exceptions for one candidate — a longer interview, a different test — document your reasons carefully so you can demonstrate the process was fair.

Common trap: Pre-offer health questions (s.60 Equality Act 2010)

Asking candidates about their health, disability, or sickness absence record before making a
conditional job offer is a breach of s.60, regardless of your intentions. This applies even in
application forms that ask 'do you have any health conditions we should know about?'. Save those questions for after the offer stage.

Positive Action vs Positive Discrimination

These two concepts are frequently confused — and confusing them can land you in trouble. Positive discrimination means selecting someone because of a protected characteristic — for example, hiring a woman in preference to a man purely because of her sex. That is unlawful under the Equality Act.

Positive action, by contrast, is lawful. It allows you to take steps to encourage or develop people from under-represented groups — such as targeted training programmes, mentoring schemes, or advertising vacancies in publications aimed at minority communities. Under s.159, you can also use a protected characteristic as a tiebreaker between two equally qualified candidates  but only where that characteristic relates to a group that is genuinely under-represented in your workforce, and only if the candidates are truly of equal merit. You cannot use it as a general preference.

Practical tip: Structured shortlisting

• Use a standardised scoring matrix for all applicants, assessed against the person specification.
• Score candidates before seeing their names where possible — or use name-blind applications.
• Keep written records of shortlisting decisions and scores. If challenged, you'll need them.
• Audit your recruitment outcomes periodically to spot patterns across protected groups.

Equal Pay

Equal pay law is technically part of sex discrimination law — it sits in Part 5 of the Equality Act and operates through what is called an 'equality clause' implied into every contract of employment. The rule is straightforward: a woman doing equal work to a man (or vice versa) must receive equal pay, unless there is a material factor that explains the difference and is not itself tainted by sex discrimination.

Three Routes to an Equal Pay Claim

A claimant can choose a comparator — someone of the opposite sex employed by the same employer (or an associated employer) — and establish equal work in one of three ways:

1) Like work — the same or broadly similar work. Minor differences in the actual work done don't prevent a like work comparison if they are not of practical importance.

2) Work rated as equivalent — where a job evaluation scheme has rated the jobs as equivalent under the factors it uses. If you have a job evaluation scheme, take care that it doesn't contain criteria that could themselves be gender-biased

3) Work of equal value — where an independent expert, appointed by the tribunal, assesses the jobs as equivalent in terms of demands such as effort, skill, and decision-making. This is the route most often used where no job evaluation scheme exists.

The Material Factor Defence in Equal Pay

Even where a claimant establishes equal work, you can defend the pay difference if it is genuinely explained by a material factor — market rates for a particular skill, length of service, geographical pay supplements, or performance-related pay. But if that factor is itself indirectly discriminatory (for example, using length-of-service increments that disadvantage women who took career breaks), you'll need to show it is proportionately justified.

Common trap: Pay secrecy clauses

Many employers include clauses in contracts preventing employees from discussing their pay.
Under the Equality Act 2010 (s.77), such clauses are unenforceable where the discussion is for the purpose of finding out whether there is a pay disparity linked to a protected characteristic. You cannot discipline an employee for asking a colleague what they earn in those circumstances.

Gender Pay Gap Reporting

Separate from equal pay law, employers with 250 or more employees must publish annual gender pay gap data under the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017. This is a reporting obligation, not a requirement to close the gap. But a large and unexplained gap can draw EHRC attention and attract reputational risk — and it may prompt equal pay claims from employees who see the data.

Employer Liability in Regards to Discrimination

Here's the part that many employers don't fully appreciate until it's too late. Under s.109 of the Equality Act, you are liable for discrimination or harassment carried out by your employees in the course of their employment — whether or not you knew it was happening, and whether or not you approved of it. This is called vicarious liability.

The phrase 'in the course of employment' is interpreted broadly. It covers work events (the Christmas party that turns ugly), work-related social occasions, and communications via workplace messaging systems. It has even extended in some cases to conduct between employees outside working hours where there is sufficient connection to the employment relationship.

The 'All Reasonable Steps' Defence (Discrimination in the workplace)

There is one statutory defence available to employers facing vicarious liability claims: you must show that you took all reasonable steps to prevent the employee from doing the discriminatory act. This is sometimes called the s.109(4) defence.

In practice, tribunals expect to see genuine substance behind that claim, not just a policy document that nobody has read. The defence is more likely to succeed if you can show:

• An equal opportunities and anti-harassment policy that is clearly communicated to staff
• Regular equality and diversity training, with records of attendance
• A clear grievance procedure that employees know how to use
• Evidence that complaints have been investigated and acted on in the past
• Management trained to recognise and respond to discrimination

Why training records matter

A policy on paper counts for little if you cannot show it was communicated and understood.
Employment tribunals have rejected the all-reasonable-steps defence where training was
out-of-date, not attended by the relevant manager, or purely tick-box in nature. Keep dated training records and repeat training at least every two years — ideally more frequently for managers who handle HR issues.

How to Handle Discrimination Complaints in the Workplace

When a discrimination complaint lands on your desk - whether through a formal grievance or an informal conversation with HR — the way you handle it matters enormously. A poor response can turn a manageable dispute into a tribunal claim, or transform a harassment complaint into a constructive dismissal claim on top of it.

The Grievance Process

Your starting point should be your grievance procedure. Most employers have one, but they often treat discrimination complaints the same as any other grievance — which may not be appropriate. Consider whether the standard grievance manager is the right person to handle a complaint about their own conduct, or about a very senior employee. You may need to bring in someone more senior, an alternative HR contact, or an external investigator.

ACAS recommends — and tribunals expect — that the process follows the ACAS Code of Practice on Disciplinary and Grievance Procedures. While the Code was not written specifically for discrimination complaints, a failure to follow it can increase any tribunal award by up to 25%.

The Investigation of a Discrimination Complaint

Investigation of a discrimination complaint must be thorough, impartial, and documented. That means interviewing the complainant, the alleged perpetrator, and any witnesses; reviewing relevant communications and records; and reaching findings of fact based on the balance of probabilities. The investigator should produce a written report.

Take care to protect the confidentiality of those involved, while being clear that complete
confidentiality cannot always be guaranteed. The investigation cannot be meaningful if the alleged perpetrator doesn't know what they're accused of.

Outcomes

Where a complaint is upheld, the response must be proportionate to the seriousness of the conduct. Minor first-instance harassment might warrant a warning and re-training; serious or persistent conduct may justify summary dismissal. Where complaints are not upheld, that finding should be communicated clearly to both parties, along with any steps taken to improve the working environment.

Common trap: Keeping the complainant in the dark

One of the most common complaints following a discrimination investigation is that the complainant was told nothing or worse, was asked to continue working alongside the alleged perpetrator during the investigation. Update the complainant on progress, tell them the outcome, and consider interim measures (such as temporary redeployment) while the matter is investigated.

Tribunal Claims Regarding Discrimination

Discrimination claims have features that make them significantly more serious — both financially and reputationally — than most other employment claims.

No Qualifying Period for Discrimination Claims

Unlike unfair dismissal, discrimination claims can be brought from day one of employment — or even before employment begins, in the case of a discriminatory recruitment process. There is no minimum length of service required. That means a new starter dismissed after a week can bring a claim if they can show the reason was connected to a protected characteristic.

No Cap On Compensation for Discrimination Claims

This is the most significant financial distinction. Compensation for unfair dismissal is subject to caps: the basic award is capped at £21,000 and the compensatory award at £115,115 (2026 figures). Discrimination compensation has no cap — a claimant can recover their full financial loss, however large. In cases involving career-ending discrimination, particularly affecting highly paid employees, awards can reach hundreds of thousands of pounds.

Injury to Feelings - Discrimination Claims

On top of financial loss, discrimination claimants can recover an additional award for injury to feelings — the impact on their dignity, self-esteem, health, and emotional wellbeing. These awards are assessed using the Vento bands, updated from time to time by the Employment Appeal Tribunal. The current bands (from April 2024 as adjusted) are as follows:

What is the Time Limit of Bringing a Discrimination Claim Against Employer?

The time limit for bringing a discrimination claim to the Employment Tribunal is three months less one day from the date of the act complained of. For a continuing act of discrimination (such as an ongoing harassment campaign), time runs from the last act in the series. Tribunals have a discretion to extend time where it is just and equitable to do so — a more flexible test than the 'not reasonably practicable' extension that applies to unfair dismissal. As a result, late claims are more frequently admitted in discrimination cases.

Before lodging a claim, a claimant must notify ACAS under the Early Conciliation process. This pauses the limitation clock, but does not remove the urgency — you should address any early conciliation approach seriously and promptly.

Burden of Proof for Discrimination

In discrimination claims, once the claimant establishes facts from which a tribunal could conclude that discrimination occurred, the burden shifts to the employer to show a non-discriminatory reason for the treatment. This reversed burden means that a lack of documentation or inconsistent witness evidence — can be decisive. Your paper trail is your best friend.

Quick-Reference: Managing Discrimination Risk

Need Advice on Discrimination?

Next Steps

If harassment is involved → review workplace harassment guidance

If formal action is required → follow a disciplinary procedure

If claims are raised → understand the employment tribunal process

If resolving early → consider settlement agreements