General review undertaken to reflect the Equality Act 2010
A quick guide to the law on unlawful discrimination in employment (including direct and indirect discrimination, harassment and victimisation), why it is important, and key pitfalls to avoid.
This is one of a series of quick guides, see Quick guides.
Discrimination law, set out in the Equality Act 2010, is designed to ensure equality of opportunity at work, to protect employees' dignity and to ensure that complaints can be raised without fear of reprisal.
Discrimination law pervades many other areas of employment law. It is often not possible to fully appreciate an employee's rights in a given area without considering whether there are discrimination law implications. For example, a pregnant employee's rights under the Employment Rights Act 1996 cannot be considered in isolation from UK and EU discrimination law principles. Likewise, in the field of contract law, the enforceability of contractual clauses on, say, employee mobility or working hours may be affected by discrimination law.
There is no limit to the amount of financial loss that can be awarded in a successful case. Litigation can also involve significant management time and legal costs, which are usually not recoverable.
Allegations of discrimination or harassment are likely to create bad publicity for an employer. It is better to avoid giving rise to a claim than to manage a crisis after a claim has been made. Discrimination and harassment issues can be highly emotive, and the process may have a negative impact on employee morale.
Discrimination law covers all areas of employment including job adverts and the recruitment process, terms and conditions of work, conduct during employment and social events at work. It also covers dismissal and, arguably, work-related matters arising after employment has ended, such as giving references.
An employer will often be held responsible for the discriminatory actions of its employees. It may also be responsible for discrimination by external bodies such as recruitment agencies if they are acting with the employer's authority.
The law protects, among others, agency workers, freelance workers, consultants, partners and directors as well as employees.
An employer must not discriminate against employees on the basis of:
Disabled persons are also protected against "discrimination arising from disability" (that is, unfavourable treatment arising in consequence of the disability), and failure by the employer to make a reasonable adjustment for the disability.
Harassment involves unwanted conduct that has the purpose or effect of violating a person's dignity or creating an offensive, intimidating or hostile environment. It is discriminatory if it is related to any of the characteristics listed above (except marital/civil partnership status and pregnancy/maternity).
Victimisation involves treating a person less favourably because they have complained (or intend to complain) about discrimination, or because they have given evidence in relation to another person's complaint. An employee must not be disciplined or dismissed, or suffer reprisals from colleagues, for complaining about discrimination or harassment at work.
Treatment of an individual will not be indirectly discriminatory if it is objectively justified. To be justified, it must correspond to a legitimate business aim and be an appropriate and reasonably necessary way of meeting that aim.
For example, a requirement to have excellent written English skills may indirectly discriminate against non-British job applicants, unless the employer can show that the aims of the job in question cannot reasonably be met without that requirement.
Direct discrimination cannot be justified (except for direct age discrimination). Victimisation and harassment can never be justified.
It may be lawful to discriminate if having a particular characteristic is an occupational requirement. For example, a Christian school may require its religious education teacher to be a Christian. The employer must usually show that it is proportionate to apply the requirement.
There are some instances in which employers are required by statute to do something discriminatory. For example, immigration legislation may require an employer to refuse to employ a non-EU job applicant on grounds of their nationality, even if they are the best qualified for the job.
The law allows employers in some cases to discriminate because of a protected characteristic to overcome disadvantage or under-representation of particular groups. It is entirely optional; there is no duty to take positive action (although sometimes the duty to make reasonable adjustments for a disabled person may involve treating them more favourably than others to overcome an existing disadvantage). It is unlawful to operate any kind of "quota" system.
To help avoid breaching discrimination law, an employer should: