What is Employment Discrimination in the UK?

Employment discrimination can occur in several ways, whether it be intentional or the result of unconscious bias. Whatever the case, in the UK, discrimination at work is illegal and most employers try their best to avoid it. Nonetheless, you could face an employment tribunal for unlawful discrimination. If you end up in this situation, the process will not only impact the reputation of your business. It will also cost you time and money, and create low staff morale.

Ultimately, as an employer, you have a responsibility towards your employees and your workplace as a whole, and most employers would never intentionally discriminate. However, discrimination may not always be obvious to you. Therefore, this article will explain employment discrimination in the UK with some examples to help you prevent unlawful employment discrimination from taking place. 

What is Discrimination?

Discrimination is when you treat somebody less favourably based on a protected characteristic. In the UK, this is illegal. The protected characteristics are:

• race, which includes colour, ethnic origin, national origin and nationality;
• sex;
• being pregnant or on maternity leave;
• having a disability;
• religion or belief;
• sexual orientation;
• age;
• being married or in a civil partnership; or
• gender reassignment.

Discrimination based on a protected characteristic does not have to be because your employee has that characteristic. For example, it may be because they are associated with someone with that characteristic.

Discrimination is illegal in many settings, including:

• in the workplace;
• in education;
• towards a consumer;
• through public services;
• when renting or buying property; and 
• through a private club or association membership or in the context of a guest.

Types of Discrimination

There are four main types of discrimination. These are explained in the table below. 

How Can Discrimination Take Place at Work?

Discrimination can occur in the workplace as direct, indirect, harassment and victimisation based on protected characteristics. However, this can also occur outside work. For instance, it can be through a job advert, offering job references, and in other situations. 

In practice, employees are protected in terms of:

• dismissal;
• employment terms and conditions;
• payment and benefits;
• training;
• recruitment;
• redundancy; and 
• promotion and transfer opportunities.

When Might Discrimination Be Lawful? 

You may lawfully discriminate through direct and indirect discrimination in the workplace where your organisation requires you to. For example, say you run a healthcare centre aimed at Muslim women. In this case, discriminating by only employing women may be appropriate. However, for discrimination to be lawful, you must justify it. For example, you need to prove it was appropriate and necessary regarding your business’ needs. Furthermore, you must prove it is proportionate in terms of the context.

Examples of Discrimination 

Below are some examples in the workplace.

1. Suppose you fail to offer a promotion to a woman based on her sex and instead offer the promotion to a male less qualified than her. In that case, this would be direct discrimination and unlawful.
2. Suppose you ask in an application form if the applicant has any disabilities which will make the job challenging, this would be direct discrimination and is unlawful.
3. Suppose you do not offer a promotion to an employee concerning working with alcohol as you believe their name means they are Muslim, and you think they would not want the role. This may be discrimination by perception. Therefore, it is a form of direct discrimination and is unlawful.
4. Recruiting internally where all your staff are already male. By doing this, you are only allowing men to apply for the position and discriminating based on sex. However, this is indirect discrimination as you use a rule for all potential applications. In doing so, you are putting a group with a protected characteristic at an unfair disadvantage.
5. Offering a job based on several years of experience. Indeed, if you do this, you are potentially indirectly discriminating based on age, as younger people may not have had the knowledge you require.
6. A situation where employees are discriminating against each other. Importantly, if your employees discriminate against each other, you could be held responsible for this as an employer. Indeed, the law refers to this as ‘vicarious liability’. This means if the court links the discrimination to the employee’s work, you may be held accountable for it. However, you may not be liable if you can prove that you took reasonable steps to prevent it.

How to Prevent Employment Discrimination

As an employer, you must do what you can to prevent discrimination from happening in the workplace. To do this, you must: 

• ensure you have an up-to-date work policy on equality, diversity and inclusion;
• give your employees anti-discrimination training;
• have clear procedures in place for employees to make complaints; and
• ensure managers regularly meet with their staff to create opportunities to discuss issues and create good working relationships.

Key Takeaways

Ultimately, as an employer, you must be clear about what employment discrimination is. Indeed, you must understand when a court considers it illegal and when it may be appropriate. You can also be held liable for the unlawful discrimination your employees carry towards each other. If unlawful discrimination occurs in employment, you could face an employment tribunal regardless of the time the employee has been with you.

If you need help understanding employment discrimination in the UK, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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