Your ultimate guide to discrimination at work

We would like to believe that discrimination at work is decreasing across the UK. However, unfortunately the data shows us it is, in fact, the opposite. We can see in many areas, both claims and compensation awards are rising – revealing a concerning trend for employers.

This list is of course not exhaustive but the picture is clear: discrimination cases are on the rise. 

Reasons for the rise in discrimination claims

The cause of this rise is unclear. For example, it could be due to: 

• A less inclusive attitude in the workplace leading to more incidents of discrimination in the workplace 

•  A greater awareness of employment rights empowering employees to speak up who might not have done so in previous years  

• A combination of both 

However the message remains clear: employers need to take on a proactive approach of reducing discrimination in the workplace. 

The Equality Act 2010 is a vital piece of legislation designed to prevent discrimination and promote fairness in the workplace and wider society. It consolidates and strengthens previous anti-discrimination laws, ensuring that individuals are treated equally, regardless of specific characteristics. By setting out clear legal protections, the Act provides a framework for employers, service providers, and individuals to uphold fairness and inclusivity. 

One of the key aspects of the Act is that it applies across various areas of life, including employment, education, and the provision of goods and services. It ensures that individuals are protected from unfair treatment in hiring practices, workplace policies, and access to public or private services. Employers and organisations must take proactive steps to comply with the Act, ensuring that discrimination does not occur in any form. 

A protected characteristic is a specific attribute that is legally safeguarded under the Equality Act 2010. These characteristics represent the most common grounds for discrimination and are protected to ensure individuals receive fair treatment in employment, education, and service provision.

The Act identifies nine protected characteristics, and it is unlawful to discriminate against someone based on any of these attributes. Understanding these protections is essential for employers and HR professionals to ensure compliance with the law and to foster inclusive workplaces. 

So, now that we’ve defined what discrimination is, we need to know in what ways can someone be discriminated against? 

In the legal sense, discrimination is always linked to a protected characteristics listed in the Equality Act 2010. So there are nine umbrella types of discrimination to watch out for in the workplace and beyond. 

Ageism or age discrimination is when someone is treated differently due to their age (or their perceived age – see discrimination by perception above). In some cases, someone may also be discriminated against due to their connection with someone of a specific age group – for example, if they have a partner with a significant age difference.. 

It also works in the inverse. For example, if you’re treated less favourably due to an age you’re not – such as not receiving a promotion because you’re seen as not old enough. 

Ageism may happen because the person is a certain age – for example, 16 – or belonging to a range of ages – for example, over 50. Age groups can be very wide (e.g. under 18s) or very specific (e.g early thirties). Descriptive terms such as ‘pensioner’, ‘youthful’, ‘young person’ can also indicate an age group – so watch out for these in the workplace. 

 With more widespread use of generation labels, such as Boomer, Millennial, Gen Z etc. we may see ageism and age-related stereotypes increase! 

Discrimination can occur as a one-off action or as a result of policy / a company’s rule. It may be unintentional – but it’s still against the law. 

There are a few instances when being treated differently due to age is permitted in law. These are: 

• Occupational requirements. For example, when a particular age group is essential to the job – think hiring actors of a certain age group. 

• Objective justification. When there is an objective reason for the difference in treatment, usually to protect employees’ wellbeing. You may have to back up this justification with evidence – so seek advice if you need to do this in your business. 

• An exception in the Equality Act. For example, students aren’t protected from age discrimination at school. 

• Age-related benefits for services. For example, a gym offering discounted memberships for customers over 60, or a cinema offering concession tickets and VIP screenings for students. 

• The financial service sector using age limits when offering services. Note in this point, as well as objective justification, if you’re using age to assess risk, you’ll need reliable and impartial evidence to back this up. 

Disability discrimination is when someone is treated less favourably due to a reason relating to their disability. Like ageism, this could be a one-off action or a rule/policy that puts disabled people at a disadvantage.  

You also have to consider whether barriers exist which makes accessing something more difficult for disabled people – such as a physical barrier (no lifts), or a communication barrier (using metaphors and unclear wording which might be difficult for neurodivergent colleagues to understand). 

As usual, a person can be discriminated against if they have a disability, if someone thinks they have one, or if they’re connected with someone who does. 

What counts as disability discrimination?

The Equality Act 2010 says a person has a disability if:

• A person has a physical or mental impairment, and
• the impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

Therefore disability can span many conditions.

• A physical condition, such as a physical impairment or long-term illness
• A mental health condition that lasts/has lasted over 12 months
• Being neurodivergent, such as being diagnosed with autism or ADHD
• A progressive condition such as cancer, HIV, or MS
• A past disability

What doesn’t count as disability discrimination?

Like with ageism, if indirect discrimination occurs for good reason and it is proportionate to the role it may be lawful. This is called objective justification. For example employer could write on a job description that they need someone with a driving licence if that job is a lorry driver. Likewise they could advertise for an able-bodied person if the job required lots of manual labour.

Pregnancy and maternity discrimination is when you’re treated differently because they’re pregnant, breastfeeding, or have given birth. Maternity refers to the period after birth i.e. maternity leave.

In the UK, people going through the maternity process are fairly rigorously protected in a legal sense – perhaps, sadly, out of necessity. (With the new neonatal laws coming into effect, hopefully this will only be strengthened.) Employers should familiarise themselves with legislation because the price can be steep if you get it wrong.

Racial discrimination, or racism, is when someone is treated differently because of their race, perceived race, or the race of someone they’re near to. As usual this could be the result of a policy or a one of action and it doesn’t have to be intentional to count as discrimination.

There are a few exceptions to this which we’ll discuss below.

What counts as race?

In the Equality Act, race can mean someone’s:

• Nationality (where they live and have citizenship)
• National or ethnic origins (where they / their family had citizenship previously)
• Ethnic or racial group (Which can be made-up of multiple distinct racial groups such as Irish Travellers, British Jews etc)
• Skin colour
• A combination of these characteristics

Types of racial discrimination

1. Direct racial discrimination is when someone treats a person worse due to their race than people in a similar situation. For example, an employer not hiring people of African descent because they think they will be more ‘lazy’ (a common harmful stereotype).
2. Indirect discrimination is when an organisation has a way of working that puts people of a racial group at a disadvantage, for example a uniform policy which requires her to remain uncovered which would put Sikh men and Muslim women at a disadvantage.

Can racism happen to white people?

In a moral sense, no. There are long-rooted disparities in power and authority between white people and minoritised ethnic groups, shaped by European imperialism. As such, when someone is discriminatory towards a minoritised group, they are using that advantage to maintain the dynamic which keeps white people in a position of power. Behind the discriminatory act is the weight of current and historical oppression, which is not present in any act against white people. This disparity is widely considered to be a key necessity of racism.

Sociologist Karyn McKinney writes, “most claims that whites are victimised as whites rely on false parallels, as they ignore the power differences between whites and people of colour at the group level”.

However, in a legal sense, yes white people can be discriminated against. This is because the Equality Act states people shouldn’t be treated differently due to their ethnic/national origins, group, or colour – and so an argument can be made to defend people who think they’ve been treated unfairly because they’re white.

Recently, some cases have won in an employment tribunal – such as this case where three white police officers reportedly were refused a promotion, and this victimisation case.

What doesn’t count as race discrimination?

In some cases, employers may treat people of different backgrounds differently due to their race if there is good reason for it. This is called objective justification. An example maybe in order to prevent fraud, a bank account may not let people open an account who haven’t been a resident in the UK for under 12 months. Of course, the bank would have to prove there was no practical alternative.

Like above, there are certain times when people can be treated differently due to their gender reassignment.

• Strictness – if done in a reasonable and fair way. If an employer reasonably doesn’t allow time off, but this is consistent across all employees. For example, if an employer allows time off for an employee to attend a graduation ceremony, it may then be unreasonable for them to deny a request for time off due to a gender reassignment event, such as counselling.
• Objective justification – i.e. an employer has a good reason for discrimination. An example may be a manager recommending a trans employee stop working with a client who they know is transphobic, to protect their wellbeing, and work with another client instead.
• Providing different treatment or services based on gender reassignment. This is an exception in the equality act that allows a lawfully established separate or single-sex service provider to prevent, limit or modify people’s access on the basis of gender reassignment in some circumstances. However preventing trans people from accessing a sperate / single-sex service to the gender they prevent will be unlawful if they’re not able to prove this is a proportionate action to achieve a legitimate aim. For example, service providers who provide women’s private counselling denying trans women entry is likely to be unlawful. But a healthcare provider may reasonably prevent a trans woman from receiving menopause-related care, if this woman wouldn’t experience the menopause.

Sexual orientation discrimination is when someone is treated differently due to their sexual orientation

As usual, the person must not be discriminated against if they have this protected characteristic, appear to have this characteristic (e.g. someone assumes they’re gay when they’re not), or know someone who has this characteristic (such as a family member or colleague).

And as usual, ‘treating someone differently’ – and therefore breaking the law – can be one-off, accidental, unintentional, or due to a policy or company rule. Even a one-off joke can be unlawful if found offensive.

What counts as sexual orientation?

In the law, this covers being gay, lesbian, bisexual, or heterosexual. We might also presume this covers other sexual orientations such as pansexual or polyamorous – though this isn’t written down explicitly.

It also includes how someone chooses to express their orientation – such as through appearance, or the places they visit (gay bars and LGBTQIA+ community groups, for example).

Who is responsible for sexual orientation harassment – the employer or harasser?

As we discussed in the sex discrimination segment, if an employer shows they’ve done everything they can to prevent harassment, they won’t be to blame, and the harasser will be the one to make a claim against.

What doesn’t count as sexual orientation discrimination?

Occasionally, being treated differently due to their sexual orientation is lawful.

• In certain circumstances, indirect discrimination can be permitted if the employer has reasonable grounds for their policy. For example, if the employee can’t take the day off to celebrate a Pride parade as there is no means to change the shift pattern, that would probably be seen as reasonable and not discrimination. If on the other hand, this employee was the only person not permitted to change shifts to the weekend they wanted, due to it being a Pride event, that would be a different story!
• Being a certain sexual orientation is an occupational requirement (necessary for the job). For example, working at an LGBTQIA+ sexual health clinic requires someone who identifies as such, to put users at ease.
• A company is taking positive action to encourage or nurture lesbian, gay or bisexual people.
• If certain treatments or benefits require people of different sexual orientations to be treated differently.
• A religious / belief organisation (whose main purpose isn’t commercial) may exclude people of certain orientations in its membership, activities, or provision of services. However these restrictions must be necessary: “The restrictions they impose must be necessary either to comply with the doctrine of the organisation, or to avoid conflict with the ‘strongly held religious convictions’ of the religion’s followers.”

Perhaps a lesser-known protected characteristic, it’s also unlawful to treat someone differently due to their status of being married or in a civil partnership.

Who is protected?

Legislation only covers people who are either married or in a civil partnership.

People are not covered if they are:

• Single
• In an unmarried relationship (such as living with a partner)
• Engaged
• Divorced / their civil partnership has been dissolved

Types of marriage / civil partnership discrimination

There are three main types of this kind of discrimination:

1. Direct marriage / civil partnership discrimination is when someone is treated less favourably because of their married status. For example, a sales employee is fired because he enters a civil partnership with another man, because his boss thinks his new status will impact his work ethic.
2. Indirect marriage / civil partnership discrimination is when a way of working that applies to everyone puts married people at a disadvantage.
3. Marriage / civil partnership related victimisation is when someone is treated poorly because they raised a compliant about discrimination, or supported someone who did.
4. Although protection from harassment isn’t covered under this characteristic, if harassment happens it can be claimed under direct discrimination /  sexual orientation harassment (if applicable).

What is not marriage or civil partnership discrimination?

There are a few instances when treating people differently is allowed in law. This includes:

• Indirect discrimination may be permitted if there is a good reason for it to be in place, known as objective justification.
• In very specific instances, an employer may hire for a role where being single is required for religious purposes.