‘Direct’ and ‘indirect’ discrimination are classified separately in the Equality Act 2010. As an employer, it is important to know the difference between the two should an employee bring a discrimination claim against you, as the specific type of discrimination being claimed will be stated in the ET1 form. Knowing the difference between the two will also help you to prepare a defence, and maintain procedures within your organisation to eliminate discriminatory behaviour and actions.
Aside from direct and indirect discrimination, there are several other types of claims arising from potential discriminatory acts that can be brought by an employee under the Equality Act 2010, these include:
- Harassment
- Victimisation
- Sexual harassment
- A failure to create reasonable adjustments (to accommodate a disability)
- Discrimination arising from disability
- Fixed term contract protections
- Part-time worker protections
What is the difference between direct and indirect discrimination?
Direct discrimination
Direct discrimination happens when a person with a protected characteristic is treated differently (or less favourably) than a person without that characteristic. Direct discrimination can also occur when a person is treated less favourably because they are believed to have a protected characteristic, or they are with someone who has a protected characteristic.
Here are some common examples of direct discrimination:
- An employer rejecting a job application from a white person who they think is Black because the person has an African-sounding name. (Direct discrimination based on perception).
- A worker being treated less favourably in the office by a manager because the worker is friends with a person who is gay. (Direct discrimination by association).
- A female member of staff telling her employer she is pregnant, and subsequently having some of her duties removed in her role. (Direct pregnancy and maternity discrimination).
Indirect discrimination
Indirect discrimination is more difficult to spot, as it is more subtle in nature. Indirect discrimination refers to a situation where a seemingly neutral policy, criterion, or practice is applied to everyone, but particularly disadvantages a group of people who share a protected characteristic under the Equality Act 2010.
For example, an employer would be indirectly discriminatory if it implemented a workplace rule of no remote working that failed to create reasonable adjustments to accommodate employees who needed remote working to accommodate a disability. This would be indirect discrimination.
Other examples of indirect discrimination include:
- Enforcing a strict dress code that prohibits religious attire such as hijabs or turbans. This could indirectly discriminate against individuals who observe these religious practices.
- Establishing promotion criteria that heavily weighs on previous experience in similar roles may indirectly discriminate against younger employees with less work experience.
How a person can be discriminated against
It is illegal to discriminate against a person because of the following ‘protected characteristics‘:
Gender reassignment
Being on maternity leave or pregnant
Age
Being in a civil partnership or married
Disability
Religion
Sex
Sexual orentation
Race, including nationality, ethnic origin, national origin or colour
The Equality Act 2010 protects individuals from discrimination:
- In education, training or work
- As a consumer
- When renting or buying a property
- When using public services
- As a member of a private club, group or association
An individual such as a friend, family member or carer is also protected under the Equality Act 2010 from discrimination if they are associated with a person who has a protected characteristic, or if they have supported someone else’s claim for discrimination.
The Equality Act 2010 also gives protection to people with poor mental health. A person with poor mental health can be considered disabled if their condition has a ‘substantial adverse effect’ on their life, making it difficult for them to carry out everyday tasks such as eating and preparing food, washing and dressing, or travelling. The condition must last for at least 12 months, or could be lifelong for it to be considered a disability. This means that a person with poor mental health could have the protected characteristic of disability under the Equality Act 2010, protecting them from both direct and indirect discrimination.
Direct and indirect discrimination are mutually exclusive, which means that a single act of discrimination can be either one or the other – it cannot be both. If a person makes a claim of discrimination, it can only be either direct or indirect.
Discrimination with intent
Discrimination with intent is deliberate and easy to spot. It is also another way of referring to ‘direct’ discrimination. Examples include treating someone unfairly because they have a disability, or excluding someone because of their race, religion or sexual orientation.
For instance, if a woman applies for a job in a technology company and her application is rejected because the hiring manager believes that men are more proficient at technology, this is direct discrimination with intent because of sex.
Discrimination by association
This is another type of direct discrimination, in which a person receives discrimination because they are connected to someone with a protected characteristic, or they are associated with a group of people with protected characteristics. It should be noted that discrimination by association is not applicable to the protected characteristic of marriage/civil partnership.
Here is an example of discrimination by association:
A member of staff at a company has a friend who undergoes gender reassignment surgery. When the staff member’s colleagues find out about this, they stop inviting the staff member to social events at work. As gender reassignment is a protected characteristic, this could be discrimination by association.
Discrimination by perception
This is another kind of direct discrimination that happens when a person discriminates against another individual because they believe or ‘perceive’ them to have a protected characteristic.
For instance, a person could believe that another individual is older than they really are and discriminate against them because of this belief. Another instance is a group of workers insulting another colleague who they think is gay because they have seen this colleague wearing a LGBTQIA+ badge on their clothing, when in fact this badge is to show solidarity. In this case, the workers have demonstrated discrimination by perception on the grounds of sexual orientation.
What if discrimination is unintentional?
Discrimination generally falls into three categories under the Equality Act 2010, which are:
- Direct discrimination
- Indirect discrimination
- Discrimination arising from disability
In all three cases, if a claim is put forward to an employment tribunal by an employee, the tribunal will examine the employer’s conduct and other evidence before making a decision. An employer may claim that any discrimination that took place was unintentional, but this will not necessarily mean that their defence will be successful.
Intent is something a tribunal looks at closely when examining a discrimination claim and considering compensation. Candidates for jobs should only be judged based on their skills and experience rather than external factors. If an external factor may cause difficulties for an employee in their role, reasonable adjustments should be made. All correspondence between employer and employee should be maintained for future reference.
Justifying discrimination
If a person has a good enough reason for treating another person unfairly, the Equality Act 2010 states that they may be able to justify their discriminatory behaviour. There are instances when discrimination can be justified. This needs to be proved in court, and this is known as ‘objective justification’. If discrimination is justified and has a ‘proportionate means of achieving a legitimate aim’, it isn’t considered unlawful.
What is a legitimate aim?
A legitimate aim is another way of describing the reasons for the discrimination. The reasons must be genuine and relate to either:
- The health and safety of a person
- Business efficiency
- Business requirements
For instance, if a hospital advertises for the role of a new surgeon that needs someone with ten years of experience, and a candidate who is interested in the role doesn’t meet this requirement because they have had to take time out due to pregnancy and childcare, this could potentially be indirect discrimination because of sex. However, this hospital could justify asking for ten years of experience if it could reasonably demonstrate that the job could not be performed without having a solid ten years of experience. This is a legitimate aim.
The reason behind the discrimination must be necessary and appropriate. If there is a less discriminatory way of doing something, it is more difficult to justify. For instance, in the case of firefighters needing to take frequent physical tests, regardless of age, this could be seen as indirect discrimination because of age, because younger people may be more likely to pass physical tests than older people. However, the reason behind the tests are to ensure that firefighters are fit enough and have enough endurance and stamina to perform the role. If firefighters are not fit enough to do their role, this could be a health and safety issue. This is a legitimate aim, and making all firefighters take physical tests is a proportionate way of achieving this aim.
Victimisation
Victimisation happens when someone who is involved in a harassment or discrimination complaint is treated less favourably. This is different from bullying, and is specified in the Equality Act 2010.
Not being allowed to do something, being left out of normal activities and communications, or being called a troublemaker are all examples of a person being victimised.
In discrimination law, there are various ‘protected acts’ that are directly related to taking action. Victimisation is considered to have happened if a person is treated worse, or has their situation made worse, after carrying out a protected act (also referred to as ‘suffering a detriment’).
These protected acts include:
- Making a complaint of harassment or discrimination
- Acting as a witness in another person’s complaint
- Supporting another person’s complaint
- Giving evidence or saying something that does not support another person’s complaint
- Gathering evidence or information that could lead to a complaint
If a person has not carried out a protected act, but someone else suspects them of doing so, they are also protected by law from victimisation.
A person is not protected from victimisation if they have acted maliciously, for example by deliberately making a false allegation of discrimination or deliberately giving false evidence. Protection only applies if someone acts in good faith.
For example, an employee acts as a witness during an employment tribunal to support a colleague that is making a claim for sex discrimination. Later, the same employee applies for a promotion, but is rejected. A person on the selection panel says that the employee is a troublemaker and supported a discrimination claim made against the company. If the panel’s rejection was made for this reason, the employee is being victimised.
Harassment at work
According to the Equality Act 2010, there are three types of harassment:
- Sexual harassment
- Harassment related to protected characteristics
- Less favourable treatment due to harassment
Harassment is sometimes confused with bullying, and bullying can be considered harassment if the behaviour meets the definitions. If taken to an extreme, serious harassment may also be classified as a hate crime.
Unwanted behaviour is considered harassment if it violates the victim’s dignity or creates an environment that is intimidating, degrading, hostile, offensive or humiliating for the victim. This is the case if the behaviour had one of these effects without being intended, or intended to have one of these effects, regardless of whether it did or not.
In addition to this, whether or not behaviour counts as harassment depends on:
- How the victim of the unwanted behaviour views it
- The circumstances of the situation
- Whether the victim of the unwanted behaviour views the situation ‘reasonably’
Should a harassment claim reach an employment tribunal, a judge would consider how a ‘typical’ person would see the behaviour.
Unwanted behaviour could include repeated behaviour, or a one-off serious incident.
Harassment related to a protected characteristic is defined as unwanted behaviour connected to protected characteristics such as sexual orientation, sex, race, religion or belief, disability, age, or gender reassignment.
Intimidation
Workplace intimidation means using threatening verbal language, body language and/or insults, humiliation, manipulation, sexual harassment or physical harm in order to be assertive or to force someone to do something. Intimidation can make someone feel as though they are in danger, embarrassed, trapped or uncomfortable.
Intimidation is considered to be violence at work, and is often linked to discrimination, although it is possible to intimidate someone without discriminating against them.
Preventing discrimination in the workplace
All employers should take steps to prevent discrimination in the workplace. This includes:
- Understanding their rights and responsibilities as an employer
- Promoting an inclusive and diverse workforce, with up to date training and policies
- Frequent training of staff and management
- Creating a reporting service for staff and management, should discrimination occur
Taking the above steps can minimise reputational damage and the chance of employment claims. Promoting diversity, equality and inclusion is something every organisation can do, regardless of size. If an organisation creates an equality, diversity and inclusion policy, it should do this in consultation with an employee representative or trade union.
Discrimination complaints should be handled in accordance with the Acas Code of Practice on disciplinary and grievance procedures.
All company policies should be carefully checked to ensure they do not discriminate against anyone. This includes data protection policies, uniform and dress codes, flexible working policies, social media and mobile phone use, training, working hours, absence and sick leave and recruitment processes. For instance, a dress code should accommodate gender identity, religious dress, race, gender and so on.
In order to assess progress, you should measure and evaluate procedures for preventing discrimination. Check in with staff, conduct surveys, assess staff turnover, assess pay grades, consult with a trade union, and look into complaints about discrimination.
Receive advice on discrimination at work
Our team of professionals at Neathouse Partners can advise you on how to defend a legal claim of discrimination, or help you to put procedures and policies in place that can help to stamp out discriminatory behaviour in the workplace. Our HR consultants and employment lawyers are waiting to hear from you.
Call 01244 893776 today or use our contact form.
