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What is discrimination?
Employment law provides protection for workers against discrimination at work on the grounds of sex, pregnancy/maternity, marriage/civil partnership, gender reassignment, sexual orientation, religion or belief, race, disability, age, and the membership or non-membership of a trade union.
With the exception of union-related discrimination, the law against discrimination is found in the Equality Act 2010.
The Equality Act distinguishes between direct discrimination and indirect discrimination. Direct discrimination occurs when an employee or worker is treated less favourably than others because of a protected characteristic. An example would be if a man was told he had not been appointed to a secretarial post because it was regarded as a woman's job.
In other words, in general terms, direct discrimination is about 'comparison' and about treating people differently. 'Unfair' treatment on its own is not enough. It is a good idea to keep asking yourself ‘but for’ questions, to test whether the negative treatment you are receiving amounts to direct discrimination. An example would be: "if I was a man, would I be treated this way?"
There can be direct discrimination even if the reasons for a decision are subconscious and ingrained. It doesn’t have to be spelled out. In reality employers hardly ever admit to discrimination, even to themselves.
There can be discrimination even if an employer is 'well-meaning', for example making stereotypical assumptions as to what a pregnant women can and can’t do at work, instead of talking matters through with the employee and carrying a proper health and safety risk assessment.
Indirect discrimination takes place where a requirement or condition is imposed that is apparently not discriminatory but that, in practice, is more difficult for one protected group to comply with. An example of this would be including in a job advertisement a minimum height requirement for applicants (i.e. imposing a condition which fewer women would be able to comply with than men).
Indirect discrimination (as well as discrimination on the grounds of age) can be objectively justified. That is to say, an employer will have a defence to a complaint of indirect discrimination where it can show that the disputed act or omission was a proportionate way of achieving a legitimate aim.