Discrimination: how not to do it

We all know it – employers are not allowed to discriminate against staff or potential staff. And most of us have heard of the Equality Act. You can find out more at Simplify the Law.

But sometimes we aren’t quite aware of what that law actually forbids.

It’s obvious that when you are recruiting you are not allowed to pick one candidate over another simply because he is a man, or from a particular ethnic group, or because of their sexual orientation. But there are other, less-obvious ways in which discrimination can take place.

So here is a handy guide to help you remain a discerning – but not a discriminating – employer.

Direct discrimination v Indirect discrimination

Direct discrimination – it’s what it says it is. Treating someone less favourably because of a “protected characteristic”. But it’s something else as well – it’s treating one person less favourably because of the protected characteristics of another person. If a person is disciplined because they have refused to carry out a directly discriminatory act against another person, then the one disciplined is also the victim of direct discrimination.

Indirect discrimination is more difficult to define, but it is essentially when a practice or policy, which might not be actually based on a protected characteristic, still has a more significant impact on people who have that protected characteristic. The example often used relates to working patterns in a workplace which might be harder for women to maintain because of the proportion of them that have to childcare responsibilities.

An important point to remember is that indirect discrimination can in certain circumstances be justified – if the employer is using “proportionate means” of achieving a “legitimate aim”. But be careful: this is not a licence to discriminate – an employer would probably have to show that there was not another, less-discriminatory way of achieving that aim.

Protected characteristics

The following are the protected characteristics – the grounds on which it is unlawful to discriminate against anyone.

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race (which includes colour, nationality and ethnic or national origins)
  • religion or belief
  • sex
  • sexual orientation

And what about harassment?

Harassment is also forbidden by the Equality Act, where it is related to a protected characteristic. It does not have to have been committed by the employer themselves – it could be by colleagues. Harassment happens if someone is the victim of unwanted conduct towards them on the basis of their protected characteristic, which makes their working environment intimidating, hostile, degrading, humiliating or offensive. How the victim perceives the conduct is the most important factor – if it’s reasonable for them to feel harassed in that way, it won’t matter if it wasn’t intended to do so.

There’s a lot of detail – but like so many things, much of it follows the workings of common sense.

One way to ensure that you don’t fall foul of the legislation is to have a sound Equal opportunities policy.

Draft an equal opportunities policy on Simplify the Law


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