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 and age. Separately, the law also provides protection from negative treatment at work due to union membership or non-membership and lawful trade union activities. 

The law against discrimination is found in the Equality Act 2010, while m.ost of the statutory protections relating to union membership and non-membership are found in the Trade Union and Labour Relations Consolidation Act 1992. 

The Equality Act distinguishes between direct discrimination and indirect discrimination. Direct discrimination occurs when someone is treated less favourably at work 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, in consultation with her.  

Another example would be employers during the 2020 coronavirus pandemic who make stereotypical assumptions that even though both parents are working from home, the woman should take on most of the childcare and home-schooling responsibilities.  

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. 

Note: This content is provided as general background information and should not be taken as legal advice or financial advice for your particular situation. Make sure to get individual advice on your case from your union, a source on our free help page or an independent financial advisor before taking any action.

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