Employment Discrimination in the UK: Protected Characteristics, Unlawful Treatment and Employee Remedies
Quick Answer: Employment discrimination occurs where an employer or other legally responsible person treats an employee or worker unlawfully because of a protected characteristic or otherwise engages in conduct prohibited by equality legislation. The Equality Act 2010 protects against discrimination relating to characteristics including age, disability, race, religion or belief, sex, sexual orientation, pregnancy and maternity, gender reassignment and marriage or civil partnership.
Workplace discrimination can occur at almost every stage of the employment relationship.
It can arise:
- During recruitment.
- When deciding who receives a job offer.
- In pay and benefits.
- When allocating work.
- During promotion decisions.
- In disciplinary proceedings.
- When determining redundancy selections.
- Through workplace harassment.
- After an employee makes a protected complaint.
- When employment is terminated.
Discrimination is not always obvious.
It can involve a direct discriminatory decision, apparently neutral workplace rules that disadvantage a particular group, harassment, victimisation or a failure to make reasonable adjustments for a disabled employee.
It is therefore important to understand the different legal forms discrimination can take.
This article explains employment discrimination in the UK, including the protected characteristics under the Equality Act 2010, direct discrimination, indirect discrimination, harassment, victimisation, disability discrimination, reasonable adjustments, pregnancy and maternity protection, discriminatory dismissal, employer liability, compensation and Employment Tribunal claims.
Legal disclaimer: This article provides general educational information only. It is not legal advice and does not create a solicitor-client relationship. Equality law is fact-sensitive and the applicable legal test depends on the protected characteristic, type of conduct, employment status, jurisdiction and circumstances.
Key Takeaways
- The Equality Act 2010 provides the principal statutory framework for workplace discrimination in Great Britain.
- There are nine protected characteristics under the Equality Act 2010.
- Discrimination can occur before employment begins as well as during and after employment.
- Direct discrimination involves less favourable treatment because of a protected characteristic.
- Indirect discrimination can arise from a provision, criterion or practice that disadvantages people sharing a protected characteristic.
- Harassment is a separate form of unlawful conduct.
- Victimisation can occur where a person suffers a detriment because they carried out a protected act.
- Disabled employees can have rights to reasonable adjustments.
- Pregnancy and maternity have specific legal protections.
- Discriminatory dismissal can potentially give rise to an Employment Tribunal claim.
- Discrimination claims do not generally depend on the same qualifying-service requirement as ordinary unfair dismissal.
- Compensation can potentially include financial losses and, in appropriate cases, injury-to-feelings compensation.
- Employment Tribunal limitation periods are generally short.
What Is Employment Discrimination?
Quick Answer: Employment discrimination is unlawful treatment connected with a protected characteristic or another protected circumstance covered by equality legislation.
The legal test depends on the type of discrimination alleged.
Potential forms include:
- Direct discrimination.
- Indirect discrimination.
- Harassment.
- Victimisation.
- Discrimination arising from disability.
- Failure to make reasonable adjustments.
What Law Prohibits Workplace Discrimination in the UK?
Quick Answer: The Equality Act 2010 is the principal legislation governing discrimination in employment in Great Britain.
It consolidates and establishes protections concerning a range of protected characteristics and prohibited conduct.
Other legislation can also be relevant depending on the issue and jurisdiction.
What Are the Nine 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.
The precise forms of protection can differ between characteristics.
Is Discrimination Illegal at Work?
Quick Answer: Certain forms of discrimination are unlawful under the Equality Act 2010.
However, not every difference in treatment is automatically discrimination.
The claimant generally needs to establish the legal elements of the particular claim.
Can an Employer Discriminate During Recruitment?
Quick Answer: Yes. Equality law can apply during recruitment as well as after employment begins.
Potential discriminatory recruitment practices include:
- Rejecting candidates because of a protected characteristic.
- Using discriminatory job requirements.
- Asking inappropriate protected-characteristic questions.
- Applying discriminatory selection criteria.
Can an Employer Discriminate Against a Job Applicant?
Quick Answer: Potentially. Employment discrimination protections can apply to applicants and candidates in appropriate circumstances.
What Is Direct Discrimination?
Quick Answer: Direct discrimination generally occurs where a person is treated less favourably than another person because of a protected characteristic.
A direct discrimination comparison may involve:
- The claimant.
- A real comparator.
- An appropriate hypothetical comparator.
The precise legal analysis depends on the protected characteristic and circumstances.
What Is an Example of Direct Discrimination?
For example, suppose an employer refuses to promote an employee because the employee is a woman, while a similarly qualified male employee is promoted.
If the legal requirements are satisfied, this could potentially amount to direct sex discrimination.
Does Direct Discrimination Require an Employer to Admit Discriminatory Motive?
Quick Answer: No. An employee does not necessarily need an admission from the employer.
The Tribunal can consider the surrounding facts and evidence when determining why the employer acted as it did.
What Is Indirect Discrimination?
Quick Answer: Indirect discrimination can occur where an employer applies a provision, criterion or practice to persons generally which places people sharing a protected characteristic at a particular disadvantage and places the claimant at that disadvantage, unless the employer can objectively justify the measure.
The legal test is more complex than simply showing that a workplace rule affected an employee.
What Is an Example of Indirect Discrimination?
Suppose an employer introduces a rule requiring every employee to work a particular schedule.
If the rule disproportionately disadvantages a group sharing a protected characteristic, the employee may potentially have an indirect discrimination claim if the statutory requirements are satisfied.
Can Indirect Discrimination Be Justified?
Quick Answer: In circumstances where the statutory justification defence applies, an employer may seek to establish that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
The justification assessment involves balancing the employer's legitimate objective against the discriminatory impact.
What Is Harassment at Work?
Quick Answer: Harassment is unlawful conduct related to a relevant protected characteristic or conduct of a sexual nature that has the purpose or effect specified by the Equality Act 2010.
Harassment can include:
- Unwanted comments.
- Jokes.
- Insults.
- Humiliating treatment.
- Offensive messages.
- Sexual conduct.
The context and effect of the conduct matter.
Can One Offensive Comment Amount to Harassment?
Quick Answer: Potentially. Harassment does not necessarily require a long pattern of conduct.
The Tribunal will consider the nature of the conduct and the statutory test, including its purpose or effect and the surrounding circumstances.
What Is Sexual Harassment?
Quick Answer: Sexual harassment involves unwanted conduct of a sexual nature that has the purpose or effect specified by equality legislation.
Examples can include:
- Unwanted sexual comments.
- Sexual jokes.
- Unwanted touching.
- Sexual messages.
- Sexual advances.
Can Sexual Harassment Happen Online?
Quick Answer: Potentially. Workplace discrimination law can apply to relevant conduct occurring through digital communications.
Emails, messaging platforms and other electronic communications can become important evidence.
What Is Victimisation?
Quick Answer: Victimisation occurs where a person is subjected to a detriment because they have done a protected act or because the employer believes they have done or may do a protected act.
Protected acts can include:
- Bringing discrimination proceedings.
- Giving evidence in discrimination proceedings.
- Making allegations that a person has contravened the Equality Act.
- Taking other specified steps protected by the legislation.
Can I Be Victimised for Complaining About Discrimination?
Quick Answer: Potentially. Making a qualifying complaint about discrimination can amount to a protected act.
If the employee subsequently suffers a detriment because of that protected act, a victimisation claim may potentially arise.
Is Victimisation the Same as Harassment?
Quick Answer: No.
Harassment and victimisation are separate legal concepts with different statutory tests.
What Is Disability Discrimination?
Quick Answer: Disability discrimination involves prohibited treatment connected with disability under the Equality Act 2010.
Potential claims include:
- Direct discrimination.
- Indirect discrimination.
- Discrimination arising from disability.
- Failure to make reasonable adjustments.
- Harassment.
What Counts as a Disability Under UK Equality Law?
Quick Answer: The Equality Act 2010 generally defines disability as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.
The statutory definition should be applied to the specific facts.
Does an Employee Have to Tell the Employer About Their Disability?
Quick Answer: The legal position depends on the circumstances.
Knowledge of disability can become important when considering an employer's obligations, particularly reasonable adjustments and discrimination arising from disability.
What Are Reasonable Adjustments?
Quick Answer: Reasonable adjustments are changes an employer may be required to make to remove or reduce disadvantages experienced by a disabled employee or worker.
Potential adjustments can include:
- Changes to working arrangements.
- Modified equipment.
- Changes to workplace procedures.
- Adjusted duties.
- Changes to working hours.
- Additional support.
The appropriate adjustment depends on the circumstances.
Does an Employer Have to Make Every Adjustment Requested?
Quick Answer: No. The legal obligation concerns reasonable adjustments, not every adjustment an employee requests.
Whether an adjustment is reasonable depends on factors including the circumstances, practicability and effectiveness of the proposed adjustment.
Can an Employer Refuse a Reasonable Adjustment?
Quick Answer: An employer can potentially decline an adjustment where it is not legally reasonable, but the decision should be based on the applicable statutory framework.
What Is Discrimination Arising From Disability?
Quick Answer: Discrimination arising from disability can occur where a disabled person is treated unfavourably because of something arising in consequence of their disability, unless the treatment can be justified in accordance with the statutory test.
This is distinct from direct disability discrimination.
Can Absence Because of Disability Lead to Discrimination?
Quick Answer: Potentially. Disability-related absence can engage discrimination arising from disability and reasonable-adjustment obligations.
Employers should consider the applicable equality duties before making decisions about absence and dismissal.
What Is Race Discrimination?
Quick Answer: Race is a protected characteristic under the Equality Act 2010.
Race discrimination can involve matters including:
- Colour.
- Nationality.
- Ethnic origins.
- National origins.
The statutory definition should be applied to the circumstances.
Can an Employer Discriminate Because of Nationality?
Quick Answer: Potentially. Nationality can fall within the statutory protection relating to race.
What Is Sex Discrimination?
Quick Answer: Sex discrimination involves unlawful less favourable treatment or other prohibited conduct connected with sex.
It can affect:
- Recruitment.
- Pay.
- Promotion.
- Working conditions.
- Dismissal.
Can Men Experience Sex Discrimination?
Quick Answer: Yes. Sex is a protected characteristic and discrimination protections apply irrespective of whether the claimant is male or female.
What Is Pregnancy and Maternity Discrimination?
Quick Answer: Pregnancy and maternity discrimination involves unlawful treatment connected with pregnancy, pregnancy-related circumstances or maternity within the scope of the Equality Act 2010.
Pregnancy and maternity have specific statutory protections.
Can an Employer Dismiss Someone Because They Are Pregnant?
Quick Answer: Dismissal because of pregnancy can amount to unlawful discrimination and can potentially involve automatically unfair dismissal.
Can an Employer Refuse to Promote a Pregnant Employee?
Quick Answer: Potentially unlawful. Pregnancy must not be used as a discriminatory basis for employment decisions.
What Is Age Discrimination?
Quick Answer: Age is a protected characteristic.
Age discrimination can affect:
- Recruitment.
- Training.
- Promotion.
- Redundancy.
- Pay.
- Dismissal.
Can an Employer Prefer Younger Employees?
Quick Answer: Potentially discriminatory, depending on the circumstances.
Some forms of age discrimination can potentially be objectively justified under the statutory framework.
What Is Religion or Belief Discrimination?
Quick Answer: Religion or belief is a protected characteristic under the Equality Act 2010.
Protection can concern:
- Religious beliefs.
- Philosophical beliefs.
- Religious practices.
The legal test for a protected belief is fact-sensitive.
Can an Employer Ban Religious Clothing?
Quick Answer: A workplace rule affecting religious dress can potentially raise indirect discrimination issues.
The employer may need to consider whether the rule disadvantages persons sharing a protected belief and, where applicable, whether it can be objectively justified.
What Is Sexual Orientation Discrimination?
Quick Answer: Sexual orientation is a protected characteristic.
Discrimination can involve:
- Recruitment.
- Promotion.
- Pay.
- Workplace treatment.
- Dismissal.
What Is Gender Reassignment Discrimination?
Quick Answer: Gender reassignment is a protected characteristic under the Equality Act 2010.
Unlawful treatment can arise in recruitment, employment, promotion, workplace treatment and dismissal.
What Is Marriage and Civil Partnership Discrimination?
Quick Answer: Marriage and civil partnership is a protected characteristic, although the statutory protection is structured differently from some other characteristics.
Employees should consider the specific statutory provisions applicable to the alleged treatment.
Can an Employer Discriminate in Pay?
Quick Answer: Potentially. Pay decisions can amount to discrimination where they are connected with a protected characteristic and the statutory requirements are satisfied.
Equal pay law can also apply to certain sex-based pay disputes.
What Is Equal Pay?
Quick Answer: Equal pay law provides rights concerning equality of terms between men and women where the statutory requirements are satisfied.
The comparison can involve:
- Like work.
- Work rated as equivalent.
- Work of equal value.
Equal pay claims have their own legal framework and should be distinguished from ordinary direct discrimination claims.
Can an Employer Pay Men and Women Differently?
Quick Answer: Differences in pay can potentially be lawful in some circumstances, but unlawful sex discrimination or an equal-pay breach can arise where the statutory requirements are satisfied.
What Is Direct Sex Discrimination?
Quick Answer: Direct sex discrimination generally occurs where a person is treated less favourably because of sex.
What Is Indirect Sex Discrimination?
Quick Answer: Indirect sex discrimination can arise where a provision, criterion or practice places persons of one sex at a particular disadvantage and places the claimant at that disadvantage, unless the employer can establish the applicable justification defence.
Can Men Claim Pregnancy Discrimination?
Quick Answer: The specific pregnancy and maternity protections apply according to the statutory framework. Other forms of sex discrimination can potentially apply to men where the relevant legal requirements are satisfied.
Can an Employer Discriminate Against a Part-Time Employee?
Quick Answer: Part-time workers can have statutory protection against less favourable treatment under the Part-time Workers legislation, while discrimination law can also apply depending on the circumstances.
Can an Employer Discriminate Against a Fixed-Term Employee?
Quick Answer: Fixed-term employees have specific statutory protections against less favourable treatment under the applicable fixed-term worker legislation, in addition to other equality rights where relevant.
Can Discrimination Happen During Redundancy?
Quick Answer: Yes. Redundancy selection and dismissal can potentially be discriminatory.
Examples can include:
- Selecting an employee because of pregnancy.
- Using disability-related absence unfairly.
- Applying discriminatory selection criteria.
- Using age-related assumptions.
Can a Redundancy Selection Process Be Discriminatory?
Quick Answer: Potentially. Even where redundancy is genuine, the selection process must comply with applicable equality law.
Can an Employer Discriminate Against Someone on Sick Leave?
Quick Answer: Potentially. Where sickness is connected with disability, disability discrimination protections may apply.
Can an Employer Discriminate Against a Disabled Employee Because of Absence?
Quick Answer: Potentially. Disability-related absence can raise issues concerning reasonable adjustments and discrimination arising from disability.
Can an Employer Discriminate Against Someone Who Works From Home?
Quick Answer: Remote working arrangements can potentially raise discrimination issues if a workplace rule or decision disadvantages employees because of a protected characteristic.
The fact that an employee works remotely does not by itself establish discrimination.
Can Workplace Banter Be Discrimination?
Quick Answer: Potentially. Conduct described as โbanterโ can still constitute harassment if it satisfies the statutory test.
Calling conduct a joke does not automatically remove legal protection.
Can a Manager Be Personally Liable for Discrimination?
Quick Answer: Potentially. Depending on the claim and statutory framework, individuals can potentially face liability for discriminatory acts.
Employers can also potentially be liable for the acts of employees subject to the applicable statutory provisions.
Can an Employer Be Liable for an Employee's Discrimination?
Quick Answer: Potentially. Employers can be vicariously liable for discriminatory acts carried out by employees in the course of employment, subject to the statutory framework and available defences.
What Is the Employer's Defence of Reasonable Steps?
Quick Answer: In certain circumstances, an employer may seek to establish that it took all reasonable steps to prevent an employee from doing discriminatory acts.
Workplace equality policies and training can therefore have legal significance, although their existence does not automatically defeat a claim.
Does an Employer Have to Prevent Workplace Harassment?
Quick Answer: Employers have legal duties concerning workplace harassment, including specific obligations relating to sexual harassment under current equality law.
Employers should take reasonable preventative measures and respond appropriately to complaints.
What Should I Do If I Experience Discrimination at Work?
- Record what happened.
- Keep relevant messages and emails.
- Identify potential witnesses.
- Review workplace policies.
- Consider raising a grievance.
- Consider reporting the conduct through the appropriate internal process.
- Check the Employment Tribunal limitation period.
- Consider Acas Early Conciliation where appropriate.
- Obtain professional advice where necessary.
Should I Raise a Grievance Before Bringing a Discrimination Claim?
Quick Answer: There is not generally a requirement to complete an internal grievance before bringing every discrimination claim.
However, an internal grievance can sometimes provide an opportunity for the employer to investigate and resolve the problem.
It should not be allowed to cause a Tribunal limitation deadline to expire.
Can I Be Dismissed for Complaining About Discrimination?
Quick Answer: Potentially unlawful. Dismissal or detriment because an employee carries out a protected act can potentially amount to victimisation or another protected claim.
Can I Be Victimised After Making a Grievance?
Quick Answer: Potentially. The nature of the grievance matters.
A complaint concerning discrimination can potentially constitute a protected act under the Equality Act 2010.
Can I Bring a Discrimination Claim While Still Employed?
Quick Answer: Yes. An employee does not generally have to wait until employment ends to bring a discrimination claim.
Many discrimination claims concern treatment occurring during employment.
Can I Bring a Discrimination Claim After Leaving My Job?
Quick Answer: Potentially. A discrimination claim can be brought after employment ends where the relevant legal requirements and limitation rules are satisfied.
Do I Need Two Years' Service to Claim Discrimination?
Quick Answer: Generally, no. Discrimination protection is not subject to the same two-year qualifying service requirement historically associated with ordinary unfair dismissal.
The claimant must still satisfy the legal requirements of the particular discrimination claim.
How Long Do I Have to Bring a Discrimination Claim?
Quick Answer: Employment Tribunal discrimination claims generally have a short limitation period, commonly three months less one day from the relevant act, subject to Acas Early Conciliation and the specific statutory rules.
Identifying the relevant date is therefore critical.
What If Discrimination Is Continuing?
Quick Answer: Where alleged discrimination forms part of a continuing act, the limitation analysis can differ from a single isolated incident.
The Tribunal will consider the nature and continuity of the conduct.
Can an Employment Tribunal Award Compensation for Discrimination?
Quick Answer: Yes. Where a discrimination claim succeeds, compensation can potentially cover financial losses and other legally recoverable losses.
What Is the Vento Guidance?
Quick Answer: The Vento guidelines provide a framework for assessing compensation for injury to feelings in discrimination cases.
The applicable bands are periodically updated, so the correct figures should be checked for the relevant date.
Can I Claim Compensation for Emotional Distress?
Quick Answer: In appropriate discrimination claims, compensation for injury to feelings can potentially be awarded.
The assessment depends on the seriousness and impact of the discriminatory treatment.
Can I Claim for Financial Loss Caused by Discrimination?
Quick Answer: Potentially. Financial losses can include:
- Lost wages.
- Lost bonuses.
- Lost benefits.
- Future financial loss.
- Other losses caused by the discriminatory treatment.
The claimant must establish the relevant loss and comply with applicable principles of causation and mitigation.
Can I Claim for Personal Injury Caused by Discrimination?
Quick Answer: Potentially. In appropriate cases, compensation for personal injury caused by discriminatory treatment can form part of a discrimination claim.
Medical evidence can become relevant.
Can an Employment Tribunal Award Interest on Discrimination Compensation?
Quick Answer: Interest can potentially be awarded in accordance with the applicable statutory rules.
Can I Claim for Discrimination and Unfair Dismissal Together?
Quick Answer: Potentially. The same facts can support both discrimination and unfair dismissal claims where the statutory requirements for each are satisfied.
The claims should nevertheless be analysed separately.
Can Discrimination Make a Dismissal Automatically Unfair?
Quick Answer: Certain discrimination-related circumstances can engage automatically unfair dismissal protections, while discrimination itself can provide an independent Equality Act claim.
The correct legal basis should be identified from the facts.
Can I Claim If I Was Passed Over for Promotion Because of Discrimination?
Quick Answer: Potentially. Promotion decisions are subject to equality law.
The claimant must establish the relevant statutory elements.
Can I Claim If I Was Paid Less Because of My Protected Characteristic?
Quick Answer: Potentially. The appropriate claim may involve direct discrimination, equal pay or another statutory route depending on the circumstances.
Can I Claim If My Employer Gave Me Worse Shifts Because of My Religion?
Quick Answer: Potentially. A workplace rule or scheduling decision connected with religion or belief can potentially amount to discrimination.
Can an Employer Require Religious Employees to Work on Religious Holidays?
Quick Answer: There is no universal rule requiring employers to grant every religious holiday as leave.
However, workplace requirements can potentially raise indirect discrimination issues depending on the circumstances.
Can I Claim Disability Discrimination If My Employer Refuses Flexible Hours?
Quick Answer: Potentially. Where flexible hours would constitute a reasonable adjustment for a disabled employee, refusal may potentially engage the Equality Act 2010.
Can an Employer Discriminate Against an Employee With Mental Health Difficulties?
Quick Answer: Potentially. Mental impairments can fall within the statutory definition of disability where the relevant requirements are satisfied.
The legal assessment is fact-specific.
Can an Employer Discriminate Against an Employee Because of Their Age?
Quick Answer: Potentially. Age is a protected characteristic and discriminatory recruitment, promotion, pay, redundancy or dismissal decisions can potentially give rise to claims.
Can an Employer Discriminate Against an Employee Because of Their Sexual Orientation?
Quick Answer: Potentially. Sexual orientation is a protected characteristic under the Equality Act 2010.
Can an Employer Discriminate Against an Employee Because of Their Religion?
Quick Answer: Potentially. Religion or belief is protected under the Equality Act 2010.
Can an Employer Discriminate Against an Employee Because of Their Nationality?
Quick Answer: Potentially. Nationality can fall within the protected characteristic of race.
What Evidence Is Useful in a Discrimination Claim?
- Employment contract.
- Emails.
- Messages.
- Performance records.
- Promotion records.
- Pay information.
- Disciplinary documents.
- Grievances.
- Witness statements.
- Recruitment documents.
- Workplace policies.
- Records of reasonable-adjustment requests.
Should I Keep a Record of Discriminatory Incidents?
Quick Answer: Yes. A contemporaneous record can help establish what happened, when it happened, who was involved and what was said.
Records should be factual and accurately maintained.
Can Emails Prove Discrimination?
Quick Answer: Emails can provide important evidence, particularly where they reveal the reasoning behind a decision or inconsistent treatment.
Can Witnesses Prove Workplace Discrimination?
Quick Answer: Yes, witness evidence can be relevant.
Witnesses can potentially provide evidence concerning:
- What was said.
- What happened.
- How colleagues were treated.
- Decision-making processes.
- Workplace practices.
Can an Employer Say It Did Not Know About My Protected Characteristic?
Quick Answer: Knowledge can be important for some discrimination claims, particularly disability-related claims.
The relevance of knowledge depends on the specific statutory cause of action.
Can an Employer Be Liable If Discrimination Was Unintentional?
Quick Answer: Potentially. Some discrimination claims do not require proof that the employer intended to discriminate.
Indirect discrimination is a particularly important example because the focus can be on the effect of a provision, criterion or practice rather than discriminatory motive.
Does Discrimination Have to Be Intentional?
Quick Answer: No. Intent is not an essential element of every discrimination claim.
The applicable legal test depends on the type of discrimination alleged.
What Should an Employer Do When an Employee Complains of Discrimination?
An employer should take complaints seriously and consider:
- Investigating the allegation.
- Following the appropriate grievance procedure.
- Protecting the employee from retaliation.
- Considering reasonable adjustments where relevant.
- Taking appropriate action if misconduct is established.
Can an Employer Be Liable for Discrimination by a Customer?
Quick Answer: The legal position can be complex and depends on the circumstances, the type of conduct and applicable statutory provisions.
Employers should take workplace discrimination and harassment concerns seriously regardless of the source of the conduct.
Can an Employer Be Liable for Discrimination by a Colleague?
Quick Answer: Potentially. Employer liability can arise under the statutory framework governing discrimination and vicarious liability.
Can I Bring a Claim Against My Manager Personally?
Quick Answer: Potentially, depending on the statutory claim and circumstances.
The correct respondents should be identified carefully.
What Is the Employment Tribunal Process for Discrimination?
- Identify the discriminatory conduct.
- Check the limitation period.
- Notify Acas for Early Conciliation where required.
- Obtain the relevant certificate.
- Submit the ET1.
- Respond to case-management directions.
- Exchange relevant evidence.
- Prepare witness statements.
- Prepare the hearing bundle.
- Attend the final hearing.
- Receive judgment.
- Proceed to remedy if necessary.
Can a Discrimination Claim Be Settled?
Quick Answer: Yes. Discrimination claims can potentially be resolved through settlement.
Settlement may occur through:
- Acas.
- COT3 agreement.
- Settlement agreement.
- Negotiation between representatives.
Should I Accept a Settlement Offer?
Quick Answer: The decision depends on the strength of the evidence, potential compensation, risks, costs, timing and terms of settlement.
A settlement should be understood before it is accepted.
Can a Settlement Agreement Prevent Me From Bringing a Discrimination Claim?
Quick Answer: Yes, where the statutory requirements for waiving the relevant claim are satisfied.
Employees should obtain appropriate independent advice before signing such agreements.
Employment Discrimination Claim Checklist
- โ Identify the protected characteristic.
- โ Identify the type of discrimination.
- โ Record the relevant incidents.
- โ Preserve emails and messages.
- โ Identify potential comparators where relevant.
- โ Identify witnesses.
- โ Keep evidence of financial loss.
- โ Consider reasonable-adjustment requests where relevant.
- โ Consider raising an internal grievance.
- โ Check the Tribunal limitation deadline.
- โ Contact Acas where required.
- โ Obtain the Early Conciliation certificate.
- โ Consider professional legal advice.
Frequently Asked Questions
What is employment discrimination?
Employment discrimination is unlawful treatment connected with a protected characteristic or another protected circumstance covered by equality law.
What are the nine protected characteristics?
They are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
What is direct discrimination?
Direct discrimination generally involves treating someone less favourably because of a protected characteristic.
What is indirect discrimination?
Indirect discrimination can occur where a provision, criterion or practice disadvantages persons sharing a protected characteristic and the statutory requirements are satisfied.
What is workplace harassment?
Harassment is unwanted conduct falling within the statutory definition and connected with a relevant protected characteristic or of a sexual nature.
What is victimisation?
Victimisation involves subjecting a person to a detriment because they have carried out a protected act or because the employer believes they have done or may do one.
Do I need two years' service to claim discrimination?
Generally, no. Discrimination protection is not subject to the same qualifying-service requirement historically associated with ordinary unfair dismissal.
Can I claim discrimination while still employed?
Yes. A discrimination claim can potentially be brought while the employment relationship continues.
Can I claim discrimination after leaving my job?
Potentially, provided the statutory requirements and applicable limitation rules are satisfied.
Can I be compensated for discrimination?
Yes, potentially. Compensation can include financial losses and, in appropriate cases, injury-to-feelings and other legally recoverable losses.
Can I claim discrimination and unfair dismissal together?
Potentially. The same facts can support both claims where the legal requirements for each are satisfied.
How long do I have to bring a discrimination claim?
Discrimination claims are generally subject to a short Employment Tribunal limitation period, commonly three months less one day, subject to Acas Early Conciliation and applicable statutory rules.
What This Means for You
If you believe that you have experienced discrimination at work, begin by identifying the protected characteristic involved.
Then identify precisely what happened.
Ask:
- Who made the decision?
- What was said?
- When did it happen?
- Who else was treated differently?
- Was there a workplace policy involved?
- Did you complain?
- Did the treatment change after your complaint?
This information can help determine whether the issue involves direct discrimination, indirect discrimination, harassment, victimisation or disability-related discrimination.
Evidence is critical.
Keep emails, messages, meeting notes, performance records, promotion documents, pay information and relevant workplace policies.
If disability is involved, retain records of any disclosure of disability, medical evidence and requests for reasonable adjustments.
If you have complained about discrimination, keep records of the complaint and everything that happened afterwards.
This can become important where victimisation is alleged.
Do not ignore the limitation period.
Employment Tribunal discrimination claims generally have short deadlines, and an internal grievance does not automatically stop the limitation clock.
Acas Early Conciliation can affect the timetable, but it should be approached promptly.
Finally, remember that discrimination does not have to be obvious or intentional.
The legal test depends on the particular type of discrimination and the evidence available.
Conclusion
Employment discrimination law in the UK provides important protection against unlawful workplace treatment.
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.
Protection can apply throughout the employment relationship, from recruitment to dismissal.
Discrimination can take different forms.
Direct discrimination concerns less favourable treatment because of a protected characteristic.
Indirect discrimination can arise from workplace provisions, criteria or practices that disadvantage people sharing a protected characteristic and cannot be justified under the statutory test.
Harassment and victimisation are separate forms of unlawful conduct.
Disabled employees can have additional rights concerning reasonable adjustments and discrimination arising from disability.
Pregnancy and maternity also receive specific statutory protection.
An employee does not generally need the qualifying service historically associated with ordinary unfair dismissal to bring a discrimination claim.
However, the claimant must establish the legal elements of the particular claim and comply with the applicable limitation period.
Evidence should therefore be preserved as soon as possible.
Emails, messages, contracts, policies, performance records, pay information, grievance documents and witness evidence can all become important.
Where a claim succeeds, compensation can potentially include financial loss, injury to feelings and other legally recoverable losses.
The central question is not simply whether workplace treatment felt unfair.
The legal question is whether the conduct falls within one of the prohibited forms of discrimination and whether the statutory requirements can be established on the evidence.
Legal Disclaimer
This article is provided for general educational and informational purposes only. It is not legal advice and does not create a solicitor-client relationship. UK equality law is fact-sensitive and can change over time. The applicable legal test, limitation period and available remedies depend on the particular claim and circumstances. Always obtain appropriate professional advice for a specific employment dispute.