Discrimination in the workplace occurs when an employee is treated differently on the basis of a protected characteristic. The Equality Act 2010 lists certain “Protected Characteristics”. These are:
- age
- disability
- gender identity and gender reassignment
- marriage or civil partnership
- pregnancy and maternity
- race
- religion or belief
- sex
- sexual orientation
Generally, there are four types of discrimination:
Direct discrimination occurs where an employer treats an employee less favourably specifically because of a protected characteristic. For example, rejecting an applicant on the grounds of their race because they would not "fit in" would be direct discrimination.
Indirect discrimination occurs where an employer applies a provision, criteria or practice universally to all employees, but which has an unfavourable impact on one particular group as a result of a protected characteristic. For example, a requirement to work full time puts women at a particular disadvantage because they generally have greater childcare commitments than men. Harassment related to any of the protected characteristics is prohibited.
Harassment is unwanted conduct which arises from any protected characteristic that has the purpose or effect of violating someone's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Victimisation is also prohibited. This is less favourable treatment of someone who has complained or given information about discrimination or harassment or supported someone else's complaint.
An employee ordinarily has a period of three months from the last instance of discrimination to raise a claim against an employer.
Importantly, an employee does not need to personally have a protected characteristic to be able to rely on the protections offered by the Equality Act. The law also recognises discrimination by association and discrimination by perception. Discrimination by association occurs where an employer treats an employee less favourably because of their being linked to another individual (or individuals) who has a protected characteristic: for example, it would be unlawful for an employer to treat an employee unfavourably because they have responsibilities to care for a disabled child: this would be discrimination by association on the ground of disability.
Similarly, an employee may have rights under the Equality Act because they are perceived to have a protected characteristic and the employer treats them less favourably because of that perception: for example where an employer believes that an employee is of a particular religious faith because of their name and affords that employee less favourable treatment because of that belief, there would be discrimination perception, even if the employee is not of that faith.
The Equality Act states that an employer can be vicariously liable for the acts of its employees. This means that even where those in control of an employer have no connection to or involvement with an act of discrimination, they can still be found liable for the acts of other employees. To avoid such liability, an employer would need to show that it had taken all reasonable steps to prevent the discriminatory act from happening in the first place.
If you require any assistance with a discrimination issue that has arisen in the workplace, contact Miller Samuel Hill Brown for expert employment law advice in Glasgow and throughout Scotland.
