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What Constitutes Discrimination In The Workplace?

What constitutes discrimination in the workplace
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Every workplace should strive to be an inclusive and fair place to be. But despite advances in equality in recent years, some prejudices still exist, and many people find themselves discriminated against at work every year. This leaves many people wondering what constitutes discrimination in the workplace, and how an employer can strive to eliminate discrimination in their organisation.

In this article, we’ll explain everything you need to know about workplace discrimination, from what it is to how you can prevent discrimination from occurring in your business.

What is discrimination at work?

Discrimination at work refers to any situation in which an employee is treated unfairly or less favourably than other employees because of their personal characteristics. Discrimination can take many different forms, from being passed over for a promotion because of your sex to being verbally abused by your boss because of your race.

It’s important to note that discrimination doesn’t have to be intentional in order to be illegal. If an employer has a policy or practice that disadvantages certain employees, and this policy or practice can be shown to have a negative impact on those employees, then the employer can be held liable for discrimination.

What does the law say about workplace discrimination?

The law relating to workplace discrimination is set out in the Equality Act 2010. This act prohibits employers from discriminating against employees as a result of their protected characteristics. This legislation also requires employers to make reasonable adjustments to their workplace in order to accommodate employees with disabilities.

There are nine protected characteristics set out in law, against which it is illegal to discriminate. These are:

  • Race
  • Sex
  • Religion or belief
  • Age
  • Disability
  • Sexual orientation
  • Marriage and civil partnership status
  • Pregnancy and maternity
  • Gender reassignment

What is direct discrimination?

Direct discrimination occurs when an employer treats you less favourably than they would treat another employee because of your protected characteristic. Discrimination cannot be justified in the workplace, so it’s important to understand what constitutes direct discrimination in order to avoid it.

Direct discrimination can take many forms, but some common examples include:

  • Refusing to hire a candidate because they are of a certain race.
  • Promoting employees on the basis of their sex rather than their skills and abilities.
  • Failing to make reasonable adjustments for an employee with a disability.

What is indirect discrimination?

Indirect discrimination occurs when an employer has a policy or practice that disadvantages certain employees either because of their race, sex, religion etc. Indirect discrimination can be harder to prove than direct discrimination, but it still occurs on a regular basis in the workplace.

Indirect discrimination can also take many forms, some common examples include:

  • A dress code that prohibits headscarves (but no other religious symbols)
  • An employer not allowing staff members to work flexibly around childcare arrangements

Examples of discrimination at work

Examples of discrimination at work

It isn’t always easy to identify discrimination, especially when that discrimination is indirect. Let’s take a look at some examples of discrimination at work, to help you to understand where you might see discrimination in the workplace.

Here are some examples of discrimination at work:

  • An employer refusing to hire a candidate because they are of a certain race.
  • Promoting employees on the basis of their sex rather than their skills and abilities.
  • Failing to make reasonable adjustments for an employee with a disability.
  • Making unwanted comments or conduct towards another employees because of their protected characteristic.
  • Failing to hire a job applicant because they are pregnant.

What is harassment?

Harassment can occur when an employee makes unwanted comments or conduct towards another employees because of their protected characteristic. The definition of harassment in law takes into account both the effect on the victim (and how it might make them feel) as well as the intent of the harasser.

Harassment is a form of discrimination, and it’s important to remember that it’s not just limited to comments or conduct that are sexual in nature. Harassment can be anything that makes an employee feel uncomfortable at work.

What is victimisation?

Victimisation occurs when someone treats an employee less favourably than they would treat other employees because of a ‘protected act’.  Protected acts include:

  • Bringing a discrimination complaint against their employer.
  • Participating in an investigation into discrimination at work.
  • Making allegations of harassment against another employee (whether the allegation is true or false).
  • Taking any action as a result of having a protected characteristic such as asking for flexible working arrangements.

Although the less favourable treatment does not need to be related to a protected characteristic, this is often the case.

What is considered unfair treatment in the workplace

What is considered unfair treatment in the workplace?

Unfair treatment in the workplace occurs when an employer treats an employee unfairly and it is not discrimination or harassment. There is no definitive list of what counts as unfair treatment in the workplace, but some common examples include:

  • Being treated differently to other employees.
  • Being given less favourable work conditions than other employees.
  • Having your hours or shifts changed without warning.
  • Being denied training or development opportunities.
  • Being denied promotion or career progression opportunities.
  • An employee being overlooked for a promotion because they are friends with their manager.
  • An employer not providing their employees with proper equipment to do their jobs safely.
  • An employer dismissing an employee without following a fair process.

How to prevent discrimination at work

It’s important for all organisations and employers to take steps to ensure that employees are not discriminated against in the workplace. Harassment and unfair treatment in the workplace often occur because employees feel like they cannot speak up and say something.

Let’s take a look at some of the measures you can take as an employer to reduce the chances of discrimination occurring in the workplace.

During the recruitment process

The recruitment process is a common time for discrimination to occur. Whether it’s looking unfavourably upon women who have children because the hiring manager thinks they may request flexible working arrangements, or whether they have an unconscious bias when it comes to race,  these issues should be addressed and actively prevented.

To ensure fairness and avoid discrimination during the recruitment process, you can:

  • Be clear about what you are looking for and make sure your advertisements do not direct candidates to apply only if they match a certain criteria (for example, ‘googled’ as part of their job application). This could deter those with the protected characteristic from applying.
  • Think about whether any unnecessary questions you ask during the recruitment process could be used to indirectly discriminate against certain candidates. For example, asking about an applicant’s marital status or number of children.
  • Make sure your selection criteria are job-related and necessary for the role.
  • Avoid making assumptions about an applicant’s abilities based on their protected characteristics. For example, if you assume that an applicant for a role within your organisation would be female, disabled or from an ethnic minority background because of the makeup of your workforce at the moment.

During your day-to-day working environment

Once you’ve hired your employees, you then need to ensure that the working environments remains free from discrimination. Here are a few steps you can take to prevent discrimination in the workplace:

  • Organise training to make employees aware of who is protected under the Equality Act 2010 and what constitutes as discrimination and harassment. This will help to create a culture where employees feel safe to speak up if they experience any discriminatory or harassing behaviour.
  • Encourage employees to report any incidents of discrimination or harassment that they experience or witness.
  • Make sure you have a clear grievance procedure in place which employees can access if they have any concerns.
  • Ensure that employees are aware of their contract and the terms and conditions of their employment. This will help to protect them from being dismissed without a fair process.

When promoting employees

When promoting employees, it is important to consider all the candidates fairly and not just those who are friends with their manager or those who fit a certain criteria.

In order to do this, you can:

  • Chair interviews for promotions objectively and take into account all the relevant information about each candidate.
  • Make sure your selection criteria are job-related and necessary for the role.
  • Make sure you document decisions made about promotions to help defend them in case of a claim of discrimination.

When making redundancy decisions

When making redundancy decisions, employers must follow a fair process. This includes considering all the options available to employees before making any dismissals.

In order to do this, you can:

  • Make sure you consult with employees about the proposed redundancies and give them information about what their rights are.
  • Consider all the alternatives to redundancy before making any dismissals, such as redeployment or early retirement.
  • Take into account an employee’s length of service and their role within the organisation when making any decisions about redundancies.
  • Make sure you follow a fair procedure when making dismissals, including the use of a mutual agreement procedure where appropriate.

What to do if you experience discrimination at work

What to do if you experience discrimination at work

Many types of discrimination at work are easy to see, such as an employer refusing to hire a candidate because they are of a certain race. Although discrimination may be easier to spot in some cases than others, it’s important for employees not to ignore any behaviour that makes them feel uncomfortable and instead address the issue with their employer as soon as possible.

The first step is to speak with your manager or HR department and explain what has happened. They will either be able to help you resolve the issue, or they may advise you on the best course of action moving forward. Make note of when each incident occurred, who was involved, what exactly happened and how it made you feel.

If this approach fails, or if you feel as though no action is being taken to remedy the issue, then it may be time to seek legal advice. An employment solicitor will be able to help you determine whether any discrimination has occurred and provide you with advice on what steps to take next.

If your situation involves an employment tribunal claim, then it’s important to seek legal representation as soon as possible. Employment tribunals are complex, and the outcome could have a serious impact on your future career prospects.

Related questions

How is workplace discrimination proved?

Many people think that it’s easy to prove workplace discrimination, but this is often not the case. Discrimination can be difficult to identify and even more difficult to prove.

There are various things an employee can do in order to try and prove discrimination has occurred, such as keeping a diary of any incidents that have taken place, gathering witness statements from family, friends or colleagues who have seen the discrimination first hand and keeping copies of any documentation that supports your case.

Is being singled out at work discrimination?

Many employees feel as though they are being discriminated against because they are singled out at work, but this isn’t always the case. It will only be counted as discrimination if the employee in question possesses a protected characteristic. However, if the employee does not possess a protected characteristic, it could still fall under unfair treatment at work depending on the individual circumstances.

In summary

Unfortunately, discrimination still exists in today’s society, and the workplace is no exception. Discrimination in the workplace occurs when an employee with protected characteristics is treated unfairly as a result of those characteristics. Whether it comes in the form of direct or indirect discrimination, it’s something that we need to be aware of and work to actively combat.

As humans, many of us will be guilty of holding unconscious biases. It’s important that we identify those biases and work to counter them. It is only by doing this that we can eventually eliminate discrimination from society.

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