Six types of workplace discrimination

Every worker has rights under discrimination law – and it’s important for everyone to know what they are.

This guide is designed to help you gain a better understanding of your rights under discrimination law. You’ll learn about the six types of discrimination in the UK workplace and the difference between direct and indirect discrimination. You’ll also learn how to prove each type of discrimination in an Employment Tribunal claim.

‍Why everyone has rights under discrimination law

Under discrimination law, it’s unlawful to treat an employee badly or to “discriminate against them” in connection with any of following nine characteristics:

1. Age
2. Disability
3. Gender reassignment
4. Marriage and civil partnership
5. Pregnancy and maternity
6. Race
7. Religion or belief
8. Sex
9. Sexual orientation

The Equality Act 2010 defines these as protected characteristics. Because at least some of them apply to everyone, all workers have rights under discrimination law.

The six types of discrimination

There are six different types of workplace discrimination in England, Scotland and Wales:

1. Direct discrimination
2. Indirect discrimination
3. Harassment
4. Victimisation
5. Failure to make reasonable adjustments
6. Discrimination arising from a disability

In the rest of this guide, we’ll walk you through what these different types of discrimination mean and which protected characteristics they apply to. We’ll also include examples and information about how an employee could prove this type of discrimination to an Employment Tribunal, so you know how to protect yourself if any of these situations happen to you.

How to prove each type of discrimination with ‘the discrimination formula’

It’s not enough to say that you have “been discriminated against” in an Employment Tribunal claim. You need to say exactly what kind of discrimination you experienced. You can do this using a simple formula:

Type of discrimination + protected characteristic = your specific claim

So for example:

Direct discrimination + age protected characteristic = Direct age discrimination under Section 13  of the Equality Act

Indirect discrimination + disability = Indirect disability discrimination under Section 19 of the Equality Act

Harassment + religion = Harassment on the basis of religion under Section 26  of the Equality Act

Using this formula to define the type of discrimination you experienced is incredibly powerful. It will show your employer that you understand your precise legal claim, which should help them take you more seriously. Defining the type of discrimination in this way will also make you much more likely to win an Employment Tribunal claim, as this is the level of detail that the Tribunal requires you to provide.

Let’s take a look at how to use the formula to define each type of discrimination. Some types of discrimination don’t apply to all nine of the protected characteristics, so we’ve clarified which protected characteristics apply for each type of discrimination.

1. Direct discrimination

Direct discrimination happens when an employer treats someone less favourably than others because of a protected characteristic.

Example: Simon arrives for a job interview and mentions his partner during the interview, indicating that he is gay. The company doesn’t hire him as a result. This would be an instance of direct discrimination based on the protected characteristic of sexual orientation.

How to prove it: To prove direct discrimination, Simon would need to show that:

1. He has been treated badly by his employer because of his sexual orientation. Even if he doesn’t have a piece of evidence that definitely shows the bad treatment was because he is gay, he can still create an inference by providing evidence that tends to suggest the company decided not to hire him for this reason. For example, he could use a Data Subject Access Request to collect emails and chat messages relating to his interview. If they said anything negative during the interview, his account of the conversation would also count as evidence.
2. He could also use his own contemporaneous notes as evidence about what happened to lay out a pattern of behaviour. This could lead the Tribunal to conclude that there is no other reasonable explanation for the employer’s behaviour beyond discrimination. If that happens, the burden of proof moves to the employer to show that they had another reasonable explanation. These notes will be particularly helpful to refer back to when writing his witness statement, something which he will be required to do as part of the Tribunal process.
3. In a lot of cases, pointing to a “comparator” is a helpful way of creating an inference. A “comparator” is someone who is the same in all respects except for the relevant protected characteristic. For example, if a person who was less qualified but not gay got the job instead, Simon could argue that this proves the direct discrimination.

Protected characteristics that apply: Direct discrimination applies to the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Two important notes on direct discrimination

1. You can also be directly discriminated against by perception. This is where the employer perceives you to have a protected characteristic even if you do not. Let’s say Simon in the example above was actually referring to a female partner, but the company mistakenly thought he was gay. If they decided not to hire him based on this, he could have a claim for direct discrimination by perception.
2. Another way in which you can be directly discriminated against is by association. This is where you are treated less favourably because you are associated with someone with a given protected characteristic. Let’s say Simon in the example above mentioned that his partner was disabled, and that this caused the company not to offer him the role. This would be direct discrimination by association.

2. Indirect discrimination

Indirect discrimination happens when a company-wide policy or practice negatively affects a group of employees with the same protected characteristic.

Example: Aamina is a new mum and asked for flexible working from her employer, but her employer told her that they have a blanket “no flexible work” policy. This could indirectly discriminate against women, who statistically are more likely to work part-time due to childcare responsibilities.

How to prove it: To prove indirect discrimination, Aamina would need to show that:

1. The company has a “provision, criterion or practice” (PCP) that disproportionately disadvantages a group of people with a shared protected characteristic, and
2. That PCP has been applied to her directly

There is an exception for the employer: they are  sometimes allowed to discriminate if they can prove that it is a “proportionate means of achieving a legitimate aim.” The key word here is “proportionate”. If there is a way to achieve a legitimate aim in a less discriminatory way, the employer will need to show that they have tried that first before they could successfully employ this exemption.

Protected characteristics that apply: Indirect discrimination applies to the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation.

3. Harassment

There are three types of harassment in the Equality Act: a general type and then two specific to sexual harassment.

3.1 Harassment related to a protected characteristic

Harassment happens when unwanted conduct related to a protected characteristic violates an individual's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

In other words, harassment is bullying related to a protected characteristic.

Most people don’t realise that you don’t need to have the protected characteristic to be protected from harassment under the Equality Act. If you see harassment happening at work and it creates a hostile, offensive environment for you, you have been harassed and could have a legal claim. Even if there is no employee with that protected characteristic present, you can still suffer harassment - for example, an employee who overhears some colleagues making racist comments against Polish people could still suffer harassment even if neither they nor anyone else in the company is Polish.

Example: Ahmed is Muslim and is a trainee at a law firm. His fellow trainees make derogatory remarks about his religious beliefs. This creates a hostile work environment for Ahmed, and would be classified as harassment.

How to prove it: To prove harassment in Employment Tribunal, Ahmed would need to show that:

• the behaviour in question is unwanted,
• the behaviour relates to one of the protected characteristics,
• and the behaviour has the effect of violating his dignity or creating an offensive environment for him.

Protected characteristics:  Harassment applies to the protected characteristics of age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.

3.2 Sexual harassment

Sexual harassment is unwanted conduct of a sexual nature. That might include:

• flirting
• questions about someone’s sex life
• sexual comments or jokes
• remarks about someone’s body
• unwanted touching
• sexual assault

Example: Agata’s boss tells her that he wants her to wear a skirt because he wants to look at her “attractive legs”. This is sexual harassment.

How to prove it: To prove sexual harassment in Employment Tribunal, Agata would need to show that:

• the unwanted behaviour was of a sexual nature
• the unwanted behaviour was violating her dignity, or
• the unwanted behaviour was creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

3.3 Protection after sexual harassment

People who are sexually harassed at work are also protected from being punished for it by their employer.

Example: Aramintha’s boss propositions her in the kitchen at work. She rejects his advances and a week later she’s turned down for a promotion, despite having received excellent performance reviews.

How to prove it: To prove this harassment at Employment Tribunal, Aramintha would need to show that:

• The unwanted conduct was of a sexual nature or is related to gender reassignment or sex, and
• The unwanted behaviour is violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, and
• Because of her rejection of or submission to the conduct, Aramintha is treated less favourably than she would have been treated had she not rejected or submitted to the conduct.

Two important notes on harassment

1. The law protects you from harassment even if you don’t ask for the behaviour to stop or tell a superior about it. You can still make a claim for harassment even if you don’t speak up straight away.
2. For harassment related to a protected characteristic, you don’t have to have the protected characteristic relating to the harassment to be affected by it. An employee who sees or overhears this behaviour could make a claim for harassment. Even overhearing a discriminatory or sexually inappropriate comment that is directed at no-one in particular could amount to harassment.

4. Victimisation

Victimisation happens when a person is treated badly because they have made a complaint about discrimination at work or supported someone else’s complaint. The key terms to understand are “protected act” and  “detriment.”

What is a protected act?

Under the Equality Act, a protected act is defined as:

• making a complaint of discrimination, formally or informally
• providing evidence or information for a colleague’s complaint of discrimination
• doing anything else related to the Act - for example, indicating that you intend to support a colleague’s discrimination claim
• complaining that someone has done anything else unlawful under the Equality Act.

Note that you’re protected against victimisation even if you’re not the person facing discrimination. If you speak up about discrimination at work or support someone else in their own discrimination complaint, it counts as a protected act under the Equality Act.

What is a “detriment”?

A detriment is being put at a disadvantage or in a worse position than before. There isn’t an exhaustive list of detriments, as they can vary by situation, but here are some common examples:

• Denying access to resources / training
• Monitoring the employee much more closely than usual
• Bullying behaviour
• Withdrawing a job offer / promotion / career opportunity
• Limiting access to career advancement
• Dismissal
• Demotion

Example: Rashida supports a colleague's discrimination claim by giving evidence at a grievance about what she saw. Afterwards, she is put on a performance improvement plan, despite having received excellent feedback in the past.

How to prove it: In order to make a successful claim for victimisation, Rashida must show that:  

1. She carried out a “protected act” (or that her employer believed she had done so or was going to do so), and
2. She suffered a “detriment” as a result

Drawing the link between the protected act and the detriment is critical. Rashida will need to show that the detriment happened because of the protected act. She could do this by:

• showing evidence of a clear change in her employer’s behaviour after she’d carried out the protected act
• producing evidence that links the protected act to the detriment

Protected Characteristics: Victimisation applies to all nine protected characteristics. It also applies to sexual harassment.

5. Failure to make reasonable adjustments

This type of discrimination happens when an employer fails to make reasonable adjustments to accommodate a disabled person.

Example: Max, a wheelchair user, works in an office. His employer refuses to install a ramp to allow access to all parts of the building.

How to prove it: Max will need to demonstrate that he has a disability that his employer knew (or should have reasonably known) about, and that his employer failed to make the necessary adjustments to accommodate him.

Protected characteristics: This type of discrimination only applies to the protected characteristic of disability.

6. Discrimination arising from a disability

Discrimination arising from a disability happens when a person is treated unfavourably because of something connected to their disability.

Example: Hasan has depression and sometimes needs to call in sick if it’s particularly bad. His employer applies the Bradford Factor absence management formula to Hasan’s sick days and tells him that he’s taken too many. Hasan is then dismissed.

How to prove it: Hasan will need to show that his employer treated him unfavourably because of the sick days he had to take as a consequence of his depression.

Protected characteristics: This type of discrimination only applies to the protected characteristic of disability.

What to do if you think you’re being discriminated against

If you believe you’ve experienced one (or more) of the six types of discrimination, Valla is here to provide you with the support you need to stand up to your employer and take action. Our expert coaches can guide you through every aspect of the process, from making an Employment Tribunal claim to representing yourself at Tribunal hearings. Find out more about our coaching packages.

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