What is discrimination?

The Concise Oxford Dictionary of Politics defines discrimination as “originally the act of noting differences, discrimination now denotes differentiation between people on grounds such as gender, colour, sexuality, disability, or class”. Clearly, therefore discrimination entails conscious or unconscious prejudice towards or against a certain grouping of people, based upon the characteristics they share.

Moving away from a general definition of discrimination to a workplace-context, the Equality Act 2010 contains a multitude of prohibited discriminatory actions in the workplace. These are listed below.

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What types of discrimination are there?
The following provisions are contained within the Equality Act 2010:

  1. Direct discrimination – the less favourable treatment of workers because of their possession of a protected characteristic
  2. Indirect discrimination – the implementation of a provision, criterion or practice which places a particular group of people (i.e. women, the disabled etc.) at a particular disadvantage as compared to people who do not possess that characteristic, and does put the person complaining of it at a disadvantage
  3. Discrimination arising from disability – the less favourable treatment of disabled workers than other workers who are not disabled
  4. Pregnancy or maternity disability – the less favourable treatment of a woman because of your pregnancy or your taking of maternity leave
  5. Failure to comply with a duty to make reasonable adjustments – the implementation of a provision, criterion or practice, or the existence of a physical feature, or the lack of an auxiliary aid, which puts a worker at a substantial disadvantage relating to their work in comparison with other workers who are not disabled
  6. Harassment – the subjection of a worker to unwanted conduct based upon their protected characteristic which has the purpose or effect of humiliating etc. the worker
  7. Sexual harassment – the subjection of a worker to unwanted conduct of a sexual nature which has the purpose or effect of humiliating etc. the worker
  8. Victimisation – the subjection of a worker to a detriment because that worker has done (or intends to do) a protected act (i.e. submitting a complaint of discrimination to the Employment Tribunal or giving evidence relating to a claim in an Employment Tribunal
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What are the protected characteristics?

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Who can make a claim for discrimination in the Employment Tribunal?
The Equality Act 2010 is, compared to the Employment Rights Act 1996, quite wide in scope regarding who is entitled to submit a complaint of discrimination to the Employment Tribunal. The following categories of persons are covered:

  • applicants
  • employees
  • former employees
  • workers
  • apprentices; and
  • contract workers

The position of agency workers is slightly more complicated.

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Do I need a specialist solicitor to undertake my claim for discrimination?

This really depends on the particular facts of your situation. In some cases it is perfectly feasible for Claimants to undertake claims themselves, especially if the claim is relatively low-value and uncomplicated (say, for example, a straightforward claim of direct discrimination where it is clear from the start that the Claimant has been discriminated against). However, in other situations it may be appropriate to instruct a specialist employment law solicitor to undertake a claim on your behalf. There are a number of things you should bear in mind when deciding whether to instruct a soliticor:

  1. Time – will you be able to devote the necessary time to preparing and processing the claim?
  2. Confidence – are you confident in your own ability to successfully pursue a claim of discrimination?
  3. Financial resources – can you afford a lawyer? (see next point)
  4. Funding – can you instruct a solicitor on a “no win no fee” agreement or get specialist pro bono representation?
  5. Nature of the claim – is the claim a potentially complicated one legally or factually?
  6. Nature of your employer – do you think that your personally undertaking a claim against your employer could cause personal or professional problems at work? If so, would it be better to instruct a solicitor (if that is indeed possible)?
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How do I know if I’ve been discriminated against?
This is a difficult question to answer sometimes. Discrimination can be extremely obvious (for example, a middle-aged woman being told that she shouldn’t apply for a particular position because she is “too experienced”) but can also sometimes be quite subtle. Indirect discrimination cases in particular can be difficult to spot sometimes. However, if you suspect that you’re being (or have been) discriminated against in the workplace because of your sex or age or race (etc.) then sit down and have a think about what’s happened to you. Is it reasonable to conclude that you’ve been treated in a particular manner because of your protected characteristic? Has this treatment disadvantaged you in some way? Do other workers (in a comparable position to you) not receive such treatment? If so, you may have a case for discrimination. However, it is recommended that you contact a specialist employment law solicitor to have a confidential discussion about your concerns and whether you have a potentially valid claim.
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How do I know which type of discrimination applies to me?
Again, this is a difficult question to answer in a general sense as the application of the law to a particular case will depend upon the factual circumstances. It is recommended that you take a look at the pages listed below and determine whether you think any of these apply to your circumstances. Then contact a specialist employment law solicitor to have a discussion about it. Many solicitors don’t charge for the initial consultation or the risk assessment so it is often worth your while to just ring up and find out whether you have a claim.

  • Direct discrimination
  • Indirect discrimination
  • Discrimination arising from disability
  • Pregnancy or maternity discrimination
  • Failure to make reasonable adjustments
  • Harassment
  • Sexual harassment
  • Victimisation
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