Discrimination

Direct discrimination, under section 13 of the Equality Act 2010, is when a person is treated less favourably than others because of a protected characteristic. Indirect discrimination, under section 19, is when a provision, criterion, or practice that applies to everyone puts people with a protected characteristic at a particular disadvantage, and the employer cannot show that it is a proportionate means of achieving a legitimate aim. Direct discrimination because of age can be justified; most other forms of direct discrimination cannot.

The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Different forms of discrimination apply to different characteristics: for example, marriage and civil partnership is protected only against direct and indirect discrimination at work, not against harassment under section 26.

Schedule 9 of the Equality Act allows an employer to apply a requirement that would otherwise be discriminatory if having a particular protected characteristic is a genuine and determining occupational requirement, and applying it is a proportionate means of achieving a legitimate aim. Examples include religious roles requiring adherence to a particular faith or single-sex services in certain refuge settings. The bar is high and the defence is interpreted narrowly.

A workplace discrimination claim must usually be presented to an employment tribunal within three months less one day of the act complained of, with the ACAS Early Conciliation period extending the deadline. Where there is a continuing act, time runs from the last in the series. The tribunal has a discretion to extend the time limit where it is just and equitable to do so, but you should not rely on that and should act promptly.

Under sections 20 and 21 of the Equality Act, employers must take reasonable steps to remove substantial disadvantages faced by disabled workers caused by a provision, criterion, or practice, a physical feature of the workplace, or the absence of an auxiliary aid. What is reasonable depends on the cost, effectiveness, the employer’s resources, and the practicality of the adjustment. Failure to make a reasonable adjustment is itself a form of discrimination.

Tribunals can make a declaration of rights, award compensation, and recommend steps the employer should take. Compensation is uncapped in discrimination cases and can include loss of past and future earnings, an injury to feelings award under the Vento bands (low, middle, and upper), aggravated damages where the employer’s conduct made the injury worse, and personal injury damages where ill-health has resulted from the discrimination.