Discrimination 2017-04-26T10:09:08+00:00


Protected Characteristics

You can only make a claim of discrimination if your treatment relates to one or more of the following characteristics:

  • Age
  • Disability
  • Gender re-assignment
  • Marriage and civil partnership
  • Pregnancy or maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

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Brief details on the situation

What do the different forms of discrimination mean?

There are two parts to direct discrimination:

  • That you are treated less favourably than another person;
  • That the reason for that treatment is because of a protected characteristic.

You first have to prove that one of your colleagues whose situation is similar to yours was treated better than you were. If there is no-one, you must persuade an employment tribunal that a hypothetical person whose situation is similar, except for the protected characteristic, would have been treated differently from you.

You also have to show that the factor that motivated your employer to act was the protected characteristic. It is not enough that you are treated unreasonably or that you are treated differently from others. There must be some evidence from which the employment tribunal could conclude that the protected characteristic played a part in the decision.

Direct discrimination does not only apply where less favourable treatment is because of your protected characteristic. It includes a situation where you are treated less favourably because of someone else with whom you are associated (e.g. a family-member) or because your employer wrongly believed you to have a protected characteristic.

This applies where:

  • Your employer puts in place a provision, criterion or practice (‘PCP’);
  • The PCP applies to you and would apply it to others not sharing your protected characteristic;
  • That PCP places you at a disadvantage;
  • The PCP would put people with the same protected characteristic at a disadvantage;
  • The PCP cannot be justified.

It is important to remember that, just because the PCP puts you at a disadvantage, not everyone with that characteristic will be in the same position. For example, wearing particular religious items of clothing may be a personal desire but may not be shared by other members of that religion.

Unlike direct discrimination, a PCP will not be discriminatory if your employer can show that it was a proportionate method of achieving a legitimate objective.

Before you can claim discrimination, you must first show that you were disabled at the time the act of discrimination took place. This means that:

  • You must have had an impairment (physical or mental);
  • That impairment created adverse effects on your day-to-day activities;
  • Those effects were more than minor;
  • Those effects also lasted more than 12 months by the time of the act of discrimination. If not, you would be disabled if the effects can be said to have been likely to have lasted a total of 12 months or, if they had ceased, were likely to recur.

Both direct and indirect discrimination apply to disability. In addition, you will have been discriminated against if you have been treated unfavourably because of a reason related to your disability. This requires only that you have suffered some form of disadvantage because of something arising from your disability, for example absences or difficulties doing your job.

There is no need to compare yourself with a real or hypothetical colleague. However, this type of discrimination could be justifiable by your employer. Further, your employer could have a defence to the claim if he or she could not reasonably have known that there was anything wrong with you.

Finally, if you are put at a disadvantage when compared with non-disabled people, because of your employer’s premises or because of some requirement that is placed on employees, your employer has a duty to make reasonable adjustments to remove the disadvantage. If they fail, this would also be a form of discrimination.

However, the duty is limited only to reasonable adjustments. If your employer fails to implement something that is disproportionate or excessive, for example, it may not have failed in its duty. Again, your employer has a defence if it could not reasonably have known that you were disabled or that you were at a disadvantage.

Direct discrimination applies to pregnancy but a woman will also be discriminated against if she is treated unfavourably by her employer because of her pregnancy or a pregnancy-related illness.

The unfavourable treatment must take place during a ‘protected period’, which begins when the pregnancy begins and ends on return to work or, if there is no right to maternity leave, on a date two weeks after the end of the pregnancy.

It is also discrimination to treat a woman unfavourably because she is on maternity leave or has taken (or sought to take) maternity leave.

If there is unfavourable treatment of a woman because of her pregnancy or maternity leave and it takes place during the protected period then the treatment is not direct sex discrimination.

Discrimination will take place if, in relation to absence that is because of undergoing, proposing to go or has undergone gender reassignment, your employer treats you less favourably than he or she would treat you if your absence was because of sickness or injury or was for some other reason and it was not reasonable for you to have been treated less favourably.
Harassment is where an employer or another employee engages in unwanted conduct related to one or more protected characteristics that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. It must also reasonably have that effect so there would be no harassment if you were especially over-sensitive without reasonable cause.
You will be victimised if another person subjects you to a detriment or disadvantage because you have (or because they believe you have) brought proceedings under the Equality Act, given evidence in proceedings under the Equality Act or made an allegation that there has been a breach of the Equality Act.

If you think you have been discriminated against, you could consider making a claim to the employment tribunal.

Types of Discrimination

Discrimination can occur in a number of forms:

  • Direct
  • Indirect
  • In the case of a disability:
    1. Unfavourable treatment because of something arising from a disability
    2. Failure to make reasonable adjustments
  • In the case of gender re-assignment:
    1. Less favourable treatment in relation to absence because of gender re-assignment
  • In the case of pregnancy:
    1. Unfavourable treatment because of pregnancy, maternity leave or pregnancy-related illness

How do I make a claim?

One of the first things you should do is to raise a grievance with your employer. Although this is not mandatory before you bring a claim, failure to do so may effect any compensation to which you are entitled. You will also be giving your employer the opportunity to make amends.

We are experienced in bringing discrimination claims and you should contact us for a free assessment of your case. You should remember that you only have 3 months from the act of discrimination in which to send your claim to the employment tribunal and you should call us as soon as possible.