Types of Discrimination

Direct Discrimination

Someone is treated less favourably because of a protected characteristic. Applies to all protected characteristics.

Example – someone is refused entrance to a gym because they are pregnant.

Indirect Discrimination

Something which applies to everyone creates a disadvantage for people who share a particular protected characteristic. Indirect discrimination can be justified if it is shown to be a ‘proportionate means of achieving a legitimate aim’. Applies to all protected characteristics except pregnancy and maternity, which is always direct discrimination.

Example – all workers must work overtime, which disadvantages people with child care commitments, and these are mainly women.

Associative Discrimination

Direct discrimination against someone because they are associated with someone who has a protected characteristic. Applies to all protected characteristics except pregnancy and maternity and marriage and civil partnership.

Example – someone’s manager assumes they will dishonestly take time off because they have caring responsibilities for a child who is disabled, and manages their absence in an unfavourable way compared to other staff.

Perceptive Discrimination

Direct discrimination against someone because it is believed they have a protected characteristic (whether this is true or not). Applies to all protected characteristics except pregnancy and maternity and marriage and civil partnership.

Example – someone constantly suffers homophobic insults, jokes and pranks at work, even although the colleagues responsible understand that they are not gay.

Harassment

Unwanted conduct related to a protected characteristic which has the purpose of effect of violating an individual’s dignity or creating an intimidating, hostile, degrading or humiliating or offensive environment for that individual. Harassment can also be perceptive or associative (see above). Any person who feels that unwanted conduct violates their dignity or creates the type of environment described can claim harassment, even if is not directed at them and/or they do not have the protected characteristic it is related to.

Harassment applies to all protected characteristics except pregnancy and maternity and marriage and civil partnership, although in these cases it will be possible to claim that harassing behaviour is direct discrimination on grounds of sex or sexual orientation. In most cases, the wording of the Act also means that people who wish to claim harassment on the grounds of sexual orientation or religion and belief have to pursue this as direct discrimination instead. The same is true of gender reassignment in schools.

Example – a person who has no particular religious belief is very offended by the culture in their office, where colleagues are Islamophobic and make jokes, have discussions and put up pictures which demean Muslim people.

Third Party Harassment

Someone is harassed by a customer or someone else not employed by the company. In some circumstances employers are liable for third party harassment, specifically where it has occurred on at least two previous occasions and reasonable steps have not been taken to prevent it happening again. Applies to all protected characteristics except pregnancy and maternity and marriage and civil partnership.

Example – a hotel receptionist is sexually harassed by a guest; they have complained repeatedly but the employer doesn’t seem to take it seriously.

Victimisation

Someone is treated unfavourably because they have made a complaint under the Equality Act 2010, or they have supported someone else to make this type of complaint. For example, this can include making a complaint, raising a grievance or taking an employer to Tribunal. It applies in relation to a complaint made in any area that is covered by the Act.

Victimisation generally does not apply if the complaint was malicious or untrue. However, it does apply in cases where a school pupil is treated unfavourably because of their parents’ or siblings’ conduct even where a false allegation is made, provided the pupil has acted in good faith (i.e. has been honest and not malicious).

Example – a service user witnesses a day centre manager saying something racist about a friend of Chinese origin and agrees to support their complaint against the manager. The day centre staff start to ignore and avoid them both.

Discrimination arising from a disability

Disabled people are protected from being treated unfavourably at work because of something connected to their disability. This only applies where the employer knows (or could be reasonably expected to know) that the person has a disability. Discrimination can be justified in this case only if the employer can prove it is a proportionate means of achieving a legitimate aim.

Example – someone has arthritis which affects the speed at which they type. The employer disciplines them for poor performance because their typing a little slow.

Liability of employees and agents

An individual assists an employer to discriminate; this can result in the individual themselves being jointly liable for discrimination.

Example: An HR Manager follows the company’s informal policy of not hiring anyone who doesn’t have a ‘British’ accent. An interviewee of Scottish Pakistani origin is not selected for the post as a result. Both the employer and the HR Manager can be liable.

Instructing, causing or inducing contraventions

Someone is told to discriminate or made to feel they must discriminate.

Example: A social club manager tells bar staff not to serve anyone using a wheelchair in order to discourage them from coming in; the manager feels the wheelchairs take up too much room; or

Example: A new barperson starts work at the social club mentioned above. They serve a customer using a wheelchair and are later warned by their supervisor that the social club manager doesn’t approve of this and had previously sacked someone for serving a person using a wheelchair.

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