What do you need to know about discrimination law?

With potentially unlimited liability, discrimination law is one area you need to be careful around as a business owner – find out how to navigate the law

As a business owner, if you could choose one legal pitfall to avoid, it should be discrimination. Unlike unfair dismissal and other employment-related awards, losing a discrimination claim in a tribunal will lead to potentially unlimited damages – so it is essential to get the law right.

Unfortunately, keeping in line with the law isn’t quite as simple as just avoiding overt discrimination, such as being racist or sexist against an employee. You can be unintentionally discriminatory too, so you need to know how this can occur and how to avoid it.

This article provides the basics of what you need to know to stay in line with the law, covering:

  • What is discrimination?
  • What are protected characteristics?
  • How to avoid unintentional discrimination
  • What to do if someone brings a claim against you

What is discrimination?

Essentially, the law considers discrimination to occur when you treat someone less favourably because of a protected characteristic they have.

A protected characteristic is one of the following:

  • Age: A recent change in the law means there is no longer a ‘default retirement age’, so you can’t let someone go because they are too old anymore. If you wish to let an older employee go, you have to go through the standard dismissal process.
  • Sex: This refers to discrimination based upon someone’s gender.
  • Gender reassignment: This refers to discrimination against someone based upon their gender reassignment.
  • Marital status: Covering marriage and same-sex couples in civil partnerships or marriage.
  • Pregnancy and maternity: Perhaps the most legally problematic characteristic for many employers, you are forbidden from dismissing someone because they have gone on maternity leave – even multiple times. This covers paternity leave as well.
  • Race: Covering colour, nationality, national or ethnic origins.
  • Sexual orientation: Fairly self-explanatory; you cannot discriminate against someone because of who they are attracted to.
  • Religion or belief: This includes lack of any belief, and political beliefs. Interestingly, there is an exception to this covering allegiance to football teams.
  • Disability: This is defined as a physical or mental impairment which has a substantial and long-term effect on an employee’s ability to carry out day-to-day activities, so it can cover certain diseases and conditions as well. Disability law also imposes a positive requirement on employers to consider whether they can make any ‘reasonable adjustments’ to accommodate disabilities in the workplace such as ramps for wheelchair users.

It’s also illegal to discriminate against someone based upon membership of a trade union. This covers non-membership as well.

It is important to note that the Equality Act 2010 (which governs the majority of discrimination law) also outlaws ‘positive discrimination’ in which members of a disadvantaged group are treated more favourably.

The only exception to this is known as a ‘tie-break’ scenario when recruiting – if you have two employees with absolutely equal qualifications and competence for the job, you are allowed to select a candidate on the basis that their protected characteristic is under-represented in the workplace. Tread carefully here though. It will be rare that you have two equally qualified candidates for anything, and you are exposing yourself to risk of a claim.

What is a protected act?
If someone brings a discrimination claim against you, or has indicated they might, this is known as a ‘protected act’, and it is also illegal to discriminate against them on this basis.

What are the types of discrimination in the workplace?

The law considers it irrelevant whether or not you have malicious intent when discriminating against someone – it is the effect of the treatment on the other person that matters. This means you can discriminate against someone without realising it.

Broadly, there are five kinds of discrimination outlawed in the workplace:

Type Definition
Direct discrimination This is where you treat someone less favourably directly because of a protected characteristic they have. Direct discrimination can occur in situations where you treat someone less favourably because of the effect of their protected characteristic – for example, sacking a pregnant employee because she is off work and costing you money, or a disabled employee for needing expensive special equipment in the workplace. If an employee produces evidence that you discriminated against them, the burden of proof shifts to you to disprove it.
Discrimination by perception or association It is also illegal to discriminate against someone if you think they have a protected characteristic but in fact they don’t, or they associate themselves with a protected group. An example would be sacking someone because you think they are gay, or they are an advocate for gay rights.
Harassment This can be applied to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. This applies for both direct cases of harassment, as well as other employees who find certain actions or environments intimidating or offensive. Also, employers may be liable for third party harassment; the actions of people who aren’t employees.
Discrimination by perception or association It is also illegal to discriminate against someone if you think they have a protected characteristic but in fact they don’t, or they associate themselves with a protected group. An example would be sacking someone because you think they are gay, or they are an advocate for gay rights.
Victimisation This is where you discriminate against someone for making a ‘protected act’ to do with making a claim against you under the Equality Act.

How do I ensure I treat people equally?

To avoid unintentional discrimination, you need to monitor yours and others’ actions in all aspects of the workplace, but especially in some key danger areas:

  • Recruitment
  • Dismissal
  • Redundancy
  • Promotion and training selection

To avoid discrimination in these areas, consider the following:

  • Create objective criteria for selection: This applies to all the danger areas outlined above. Focus solely on the requirements of the job, and be blind to personal characteristics.
  • Be aware of bias: You might not even realise you have prejudices, so it is a good idea to involve other people in any selection process for an objective view and use a range of sources when assessing a person’s performance.
  • Maintain proper records: If someone makes a discrimination claim against you, it is much easier to defend against if you can produce records that show why you chose one person over another.
  • Carry out an