Discrimination and harassment: a quick guide

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. 

Why is it important to know about discrimination law?

Ensuring equality

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 is pervasive

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.

High compensation payments and expensive litigation

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.

Damaging publicity and loss of staff morale

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.

What does the law cover?

All areas of employment are covered

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.

What types of discrimination are prohibited?

The law covers certain protected characteristics

An employer must not discriminate against employees on the basis of:

• Sex.
• Gender reassignment.
• Being married or in a civil partnership.
• Being pregnant or on maternity leave.
• Race (including ethnic or national origin, nationality and colour).
• Disability.
• Sexual orientation.
• Religion or belief.
• Age.

Unlawful discrimination

Discrimination can be direct or indirect

• Direct discrimination. An employer directly discriminates against an employee if it treats the employee less favourably than it treats, or would treat, another person in the same or similar circumstances (the "comparator"), and does so because of one of the above characteristics.
• Indirect discrimination. An employer indirectly discriminates against an employee if it applies an apparently neutral provision, criterion or practice (PCP) that puts those of the employee's protected group at a particular disadvantage compared to other groups. The employee must also suffer a disadvantage as a member of that group and the employer must be unable to show that its PCP is objectively justified (see There may be justification for the employer's conduct). Protected groups are those defined by reference to any of the above characteristics (except pregnancy/maternity).

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

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

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.

What are the main defences to a discrimination claim?

There may be justification for the employer's conduct

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.

There may be an "occupational requirement"

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.

The law sometimes requires an employer to discriminate

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.

Positive action is sometimes allowed

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.

Potential headaches

• Recruitment and promotion decisions. A lack of written job specifications or failure to follow consistent recruitment procedures can make it difficult to defend a subsequent discrimination claim.
• Harassment. Often the first an employer knows about harassment is when an employee puts in a written grievance or goes off sick with stress. By this stage, it may be too late to avoid liability.
• Working hours and time off. Employees often request changes to their working hours or duties to meet childcare responsibilities. Since it is mainly women who make these requests, a refusal may constitute indirect sex discrimination unless it can be justified.
• Dress and appearance. If dress codes are incompatible with particular cultural or religious mores, indirect racial or religious discrimination may occur unless the dress code is justified.
• Age criteria in share schemes. Particular care must be taken with vesting conditions for share schemes to avoid age discrimination.
• Stress and disability. Employees with long-term stress-related illnesses may be protected by disability discrimination, but this does not need to paralyse the management process if handled with care.

Practical steps to reduce risk

To help avoid breaching discrimination law, an employer should:

• Provide staff with employment handbooks, including policies on equal opportunities and harassment, setting out what constitutes acceptable behaviour and what does not.
• Provide training on equal opportunities and harassment. This may help managers to avoid inappropriate questions at interviews, or to recognise and deal with harassment at an early stage.
• Set up clear procedures for staff to raise concerns and complaints, and for dealing with complaints. Ensure discriminatory behaviour by staff is not tolerated and is dealt with through proper disciplinary measures.
• Review employment contracts, policies and employee share schemes to ensure they comply with the law.
• Make reasonable adjustments where this will alleviate difficulties suffered by a disabled employee in the workplace.
• Accommodate workers' different cultures and religious beliefs, if possible. For example, requests for time off to pray should be allowed unless a refusal is justified.
• Try to accommodate requests for family-friendly hours by employees with childcare or other family commitments, unless refusal is justified.
• Carry out equal opportunities monitoring but do not use the forms as part of recruitment or other decision-making. Data from the forms should be aggregated and anonymised.