Discrimination in the Workplace: A Guide for Employers

Workplace discrimination can affect recruitment, pay, promotion, working conditions, performance management, redundancy and dismissal. For employers, understanding discrimination law is essential to creating a fair workplace and reducing the risk of complaints and employment tribunal claims. The Equality Act 2010 protects workers and job applicants from discrimination because of nine protected characteristics. Discrimination can occur through decisions made by an employer or through the behaviour of managers, colleagues or other people connected with the workplace. This guide explains what discrimination at work means, the different types of workplace discrimination, employer responsibilities and practical steps businesses can take to prevent discrimination within the workplace. What Is Discrimination in the Workplace? Discrimination in the workplace occurs when someone is treated unlawfully because of a protected characteristic. It can affect employees, workers, job applicants and, in some circumstances, former workers. Discrimination does not always involve an obvious or deliberate decision. It can arise from workplace policies, recruitment practices, management decisions or behaviour towards an individual. For example, discrimination could occur when an employer: Rejects a job applicant because of their race Pays an employee less because of their sex Refuses to make reasonable adjustments for a disabled employee Treats an employee unfavourably because they are pregnant Applies a workplace rule that disadvantages a particular group Makes offensive comments related to someone’s protected characteristic Treats an employee negatively after they raise a discrimination complaint Discrimination can happen in the workplace, during work-related events and when employees are working remotely. It can also take place through emails, social media, telephone calls and other forms of workplace communication. What Are the 9 Protected Characteristics? The Equality Act 2010 recognises nine protected characteristics: Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion or belief Sex Sexual orientation Employers must not unlawfully discriminate against workers or job applicants because of these characteristics. Protection can apply across many areas of employment, including recruitment, promotion, training, pay, benefits, disciplinary procedures, working conditions, redundancy and dismissal. What Are the Types of Workplace Discrimination? There are several forms of discrimination that employers need to understand. The main types are direct discrimination, indirect discrimination, harassment and victimisation. Direct Discrimination Direct discrimination occurs when someone is treated less favourably because of a protected characteristic. For example, an employer may reject an otherwise suitable candidate because they do not want to employ someone of a particular age. Direct discrimination can also occur when an employee receives different treatment in relation to pay, promotion, training, working conditions or dismissal because of a protected characteristic. In the case of pregnancy and maternity discrimination, the legal test involves unfavourable treatment and does not require a comparison with another employee. Indirect Discrimination Indirect discrimination can happen when an employer applies the same rule, policy or practice to everyone, but it puts people who share a protected characteristic at a particular disadvantage. For example, an employer could introduce a requirement that employees work particular hours. If that requirement disproportionately disadvantages a group with a protected characteristic, it may amount to indirect discrimination unless the employer can objectively justify the requirement. Employers should therefore consider the potential impact of workplace policies before introducing them. Harassment Harassment involves unwanted conduct related to certain protected characteristics which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. It can include inappropriate comments, jokes, emails, gestures or other unwanted behaviour. Harassment does not necessarily have to be a repeated pattern of behaviour. Employers should take complaints seriously and investigate them fairly. Victimisation Victimisation is different from ordinary bullying or unfair treatment. It can occur when someone suffers a detriment because they have carried out, or are believed to have carried out, a protected act under discrimination law. Examples can include: Making a discrimination complaint Supporting another employee’s discrimination complaint Giving evidence in a discrimination case Providing information relating to an allegation of discrimination An employee should not be treated negatively because they have raised or supported a genuine discrimination issue. Where Can Discrimination at Work Occur? Discrimination can arise at almost any stage of the employment relationship. Recruitment Employers should ensure that job advertisements, application processes, interviews and selection decisions are based on relevant skills, qualifications and experience rather than protected characteristics. Pay and Benefits Differences in pay, bonuses, benefits or other employment terms can potentially give rise to discrimination claims where the difference is connected to a protected characteristic. Promotion and Career Development Employers should use fair and consistent criteria when making decisions about promotion, training and career development. Performance Management Performance concerns should be handled consistently and based on evidence. Employers should be particularly careful when managing performance where an employee has a disability, pregnancy-related circumstances or another relevant protected characteristic. Disciplinary Action Disciplinary decisions should follow a fair process and should not be influenced by a protected characteristic or by an employee having raised a discrimination complaint. Redundancy and Dismissal Discrimination can also arise during redundancy selection or dismissal decisions. Employers should ensure that selection criteria are fair, objective and not discriminatory. Flexible and Hybrid Working Workplace discrimination can occur when employers make decisions about working arrangements, hours or flexibility. Employers should consider whether a workplace policy could disadvantage employees who share a protected characteristic. Pregnancy and Maternity Discrimination Pregnancy and maternity are protected under the Equality Act 2010. Employers should take particular care when making decisions affecting pregnant employees or employees who have recently given birth. Potential issues can arise around: Pregnancy-related absence Health and safety Performance management Working conditions Redundancy Promotion Pay and benefits Maternity leave and return to work Employers should ensure that pregnancy or maternity does not unfairly influence employment decisions. For more detailed advice, employers should consider specialist legal advice where a pregnancy or maternity discrimination issue arises. Disability Discrimination and Reasonable Adjustments Disability is one of the protected characteristics under the Equality Act 2010. Discrimination can arise through direct or indirect treatment, harassment or victimisation. Employers may also have duties concerning reasonable adjustments where a disabled employee or applicant is placed at a substantial disadvantage. Reasonable adjustments can involve changes to working arrangements, workplace practices, equipment or other aspects of employment, depending on the circumstances. Employers should consider the individual circumstances of the employee rather than assuming that the same approach will be appropriate for everyone. What Are an Employer’s Responsibilities? Employers have an important role in preventing discrimination at work. ACAS states that employers must take steps to prevent discrimination and do what they reasonably can to protect workers from discrimination by others. Employers can also potentially be held responsible for discriminatory actions carried out by their workers. Practical steps include: Having a clear equality and discrimination policy Providing appropriate equality and diversity training Using fair recruitment procedures Applying consistent workplace policies Reviewing workplace practices for potential disadvantages Taking complaints seriously Investigating allegations promptly and fairly Protecting employees from victimisation Considering reasonable adjustments where appropriate Keeping appropriate records of important employment decisions How Can Employers Prevent Discrimination Within the Workplace? Prevention is often easier than dealing with a discrimination dispute after it has developed into a formal complaint. Employers should regularly review their workplace policies and consider whether they could disadvantage particular groups. Managers should also understand how discrimination can occur in everyday decisions, including recruitment, performance reviews, promotions, disciplinary action and redundancy. Employees should have a clear way to raise concerns and should understand how complaints will be handled. Training can also help managers recognise inappropriate behaviour, harassment and unconscious bias and understand their responsibilities. What Should an Employer Do If an Employee Raises a Discrimination Complaint? A discrimination complaint should be taken seriously, even if the employer initially believes there has been no wrongdoing. The employer should: Listen to the employee’s concerns. Record the complaint and relevant details. Review the applicable workplace policies. Investigate the allegations fairly. Gather relevant evidence and speak to appropriate witnesses. Avoid treating the employee negatively because they raised the complaint. Take appropriate action based on the findings. Keep appropriate records of the process. ACAS recommends that employers investigate discrimination complaints properly and follow a full and fair procedure when dealing with allegations of harassment or victimisation. What Are the Risks of Employment Discrimination? Employment discrimination can have serious consequences for both employees and employers. Potential consequences include: Formal workplace complaints Grievances Employment tribunal claims Financial compensation Legal costs Damage to employee relationships Reputational damage Loss of employee confidence Employers should therefore address discrimination concerns promptly rather than allowing issues to escalate. Common Employer Mistakes to Avoid Some common mistakes that can increase the risk of a workplace discrimination dispute include: Ignoring Complaints An employee’s complaint should not be dismissed simply because the employer disagrees with it. Applying the Same Policy Without Considering Its Impact A policy that applies to everyone can still potentially create indirect discrimination. Making Assumptions About Employees Managers should avoid making employment decisions based on assumptions about someone’s age, sex, disability, race, religion, pregnancy or another protected characteristic. Poor Documentation Employers should maintain appropriate records explaining significant employment decisions, particularly where an employee has raised concerns about discrimination. Treating a Complainant Unfavourably Employees who raise or support discrimination complaints should not be subjected to victimisation. Failing to Train Managers Managers are often responsible for day-to-day employment decisions. They should understand the organisation’s equality policies and their legal responsibilities. Workplace Discrimination Checklist for Employers Employers can use the following checklist to review their current approach: Do we have a clear discrimination and equality policy? Are managers trained on discrimination law? Are recruitment decisions based on objective criteria? Are promotion and pay decisions applied consistently? Do we review policies for potential indirect discrimination? Do we have a clear procedure for discrimination complaints? Do we investigate complaints fairly? Do we take harassment allegations seriously? Do we protect employees from victimisation? Do we consider reasonable adjustments where appropriate? Do we keep appropriate records of important employment decisions? Get Legal Advice on Workplace Discrimination Discrimination law can be complex, particularly where allegations involve recruitment, dismissal, redundancy, pregnancy, disability, harassment or victimisation. At KLG Law, our employment solicitors advise employers on workplace discrimination issues and can help businesses understand their legal obligations, respond to complaints and manage employment disputes. If you are concerned about discrimination at work or need advice on handling a potential discrimination claim, contact KLG Law for tailored employment law advice. Call KLG Law on 01689 663851 or contact us to discuss your circumstances.