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.
Under discrimination law, it’s unlawful to treat an employee badly or to “discriminate against them” in connection with any of following nine characteristics:
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.
There are six different types of workplace discrimination in England, Scotland and Wales:
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.
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.
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:
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.
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:
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.
There are three types of harassment in the Equality Act: a general type and then two specific to sexual harassment.
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:
Protected characteristics: Harassment applies to the protected characteristics of age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.
Sexual harassment is unwanted conduct of a sexual nature. That might include:
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:
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:
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.”
Under the Equality Act, a protected act is defined as:
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.
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:
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:
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:
Protected Characteristics: Victimisation applies to all nine protected characteristics. It also applies to sexual harassment.
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.
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.
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.