Discrimination at Work: Types and Compensation

In today’s society, we enjoy working with a melting pot of different people of all backgrounds and abilities. Having a diverse team has many advantages, and the mix of different people creates a supportive and positive environment. 

However, a diverse workforce also increases the chances that one or more employees and individuals may experience some form of discrimination, whether intentional or not.

We have come a long way in modern times to create equality within the workplace and broader society. Nevertheless, instances still occur whereby a group or individual with protected characteristics may be subject to an unpleasant situation due to their background, ability, or personal preferences. 

Thankfully, the Equality Act of 2010 is enforced across the UK. It is there to protect certain groups from experiencing discrimination, and support them in the circumstance that a discriminatory activity has occurred.

Both the employer and employees need to be aware of the Equality Act 2010 and discrimination at work. 

The following guide will provide a brief overview of discrimination at work, the types of discrimination one may encounter, and what compensation is available for victims of discrimination.

 Discrimination Law

The Equality Act 2010 aims to protect individuals and groups from discrimination both inside and outside the workplace. It is the main piece of discrimination legislation that all companies and organisations must adhere to.

The following characteristics are known as ‘protected’ Characteristics and include all within the following categories:

• Age
• Disability
• Marriage or Civil Partnership
• Pregnancy and maternity
• Gender reassignment
• Sex
• Sexual orientation
• Race
• Religion or belief (including lack of belief)

The Equality Act consists of 116 different legislation pieces, each tailored to protect the needs of each characteristic under specific circumstances. Whilst the legal framework around discrimination is solid, the number one concern of employers and employees is how to spot discrimination when it happens, and what steps to take to report the incident and prevent reoccurrence.

In all cases where you may feel that you have been a victim of or witness discrimination at a place of employment, it is best to seek advice and guidance on what discrimination is, and what a worker should do about it.

Definitions of Discrimination

Although discrimination is a complex issue with many categories, the two main categories that most types fall into are ‘direct’ or ‘indirect’ discrimination.

Direct discrimination – This is when an employee is mistreated compared to other staff members because they have or are assumed to have one or more of the protected characteristics.

 Indirect discrimination occurs when a situation arises that is not discriminatory in itself, but the consequences of the situation disproportionality affect employees with protected characteristics. This is often unintentional, and in the workplace is shaped by the introduction of a new policy or procedure that creates disadvantages for those with protected characteristics.

For an instance of indirect discrimination to be proven, employees must be able to demonstrate the following:

• That the policy or procedure puts staff members with one or more protected characteristics at a disadvantage
• The policy must apply to all employees (or group of employees if it is a departmental policy)
• The staff member will be at a disadvantage either now or in the future due to the policy or procedure being in place
• The employer fails to demonstrate a logical and objective reason to keep the policy in place despite creating disadvantages for people with protected characteristics

Positive Discrimination

There is also a lesser-known but essential category known as ‘Positive Discrimination.’ This is where the reverse occurs; a person is treated preferentially due to having one or more protected characteristics. 

Positive discrimination is illegal in the UK; however, certain groups and situations can be exempt. For example, religious institutions where membership or employment must require candidates to be members of that faith, or where cultural sensitivities may be in place, such as a women’s only refuge employing all-female staff.

All organisations must demonstrate logical and objective reasoning for conducting positive discrimination. 

Discrimination by Association

Discrimination law also covers individuals who may be mistreated due to their association with someone who has one or more protected characteristics.

Where it be a friend, partner, or relative, individuals who experience discrimination due to their relationship with a person with protected characteristics also has the right to file a complaint and receive some form of compensation. 

Prejudice vs Discrimination

Prejudice and discrimination are words that are used interchangeably. Although they deal with a similar set of circumstances, they are not the same. 

Prejudice – prejudice refers to a negative attitude towards an individual and/or group that is unjustified. Someone can be prejudiced against another for reasons that are outside of the protected characteristics. More often than not, the prejudice is based on a person’s race, age, sex, gender reassignment, or other common protected characteristics.

Discrimination – occurs when an action or behaviour is demonstrated towards individuals and/or groups based on one or more of the characteristics that are protected, although it can also happen for reasons outside of those stated in the Equality Act 2010.

The main difference between the two definitions is that prejudice represents attitudes and beliefs, whereas discrimination represents actions.

Types of Discrimination at Work 

This section will go into much greater detail about the kinds of discrimination that are most commonly reported in the workplace. Each may fall into either category of direct or indirect discrimination, but the types remain the same. 

Age Discrimination

This is when a person is discriminated against due to their age. Age discrimination affects people of all age groups.

Age is also a protected characteristic under the Equality Act of 2010, and discrimination can be direct or indirect.

Direct age discrimination is when individuals or groups receive less favourable treatment than those outside of that age group. This can be due to their age or perceived age or the age of an associated person.

Indirect age discrimination is when a particular age group is left at a disadvantage due to some policy or procedure change. This usually takes the form of certain restrictions that will only affect certain age groups for one reason or another.

There are instances where age discrimination is lawful. For example, an employer may put an upper age limit on a role because it demands very high fitness levels. Alternatively, they can set a lower age limit if a position requires the use of age-restricted types of machinery – like jobs that involve driving. 

Disability Discrimination

Disability discrimination does occur when an employee is treated unfavourably or is put at a specific disadvantage because of a mental or physical disability. Both intentional and unintentional actions count as discrimination.

Under the Equality Act 2010, a disability, whether physical or mental, is described as a condition that affects a person’s ability to conduct regular day to day tasks. Disability is on a spectrum, and people with disabilities are affected in varying degrees.

An example of direct discrimination is if you refuse to employ a person solely based on their disability if their disability does not affect their ability to do the job.

An example of indirect discrimination is introducing a policy whereby employees must eat lunch in designated areas, but those areas do not have disability access.

Pregnancy and Maternity Discrimination

Under the Equality Act of 2010, pregnant women and those on maternity are protected from discrimination on the grounds of their pregnancy or maternity leave.

In this instance, women who feel that they are being discriminated against due to their pregnancy or child-rearing status do not have to compare their treatment with their male counterparts. All they need to prove is that they have been mistreated as a direct result of their pregnancy or maternity leave.

An example of direct discrimination is not promoting someone because of pregnancy or promoting them to less accommodating terms than someone who was not pregnant.

It is important to note here that there is no protection for indirect discrimination due to pregnancy under the Equality Act 2010. Instead, any women who feel that they have been indirectly discriminated against because of pregnancy would file a complaint under Sex Discrimination rather than pregnancy and maternity. 

For example, being refused flexible or part-time hours on return from maternity leave without a good objective business reason. The woman would file this complaint under sex discrimination. 

Sex Discrimination 

Sex discrimination is based on gender and applies to both men and women equally. It applies to men and women of any age.

Sex discrimination occurs when an individual or group is treated differently and less favourably than the opposite gender.

An example of direct sex discrimination is if a business offers free perks to females only.

An example of indirect sex discrimination is if an employer insists on changing the working hours and the new hours make it impossible for women to properly attend to children (i.e., school pick-ups and drop-offs). An employer may only do this because they can demonstrate a logical and objective business reason for doing so.

There are some situations where sex discrimination is lawful. For example, a gym may want to employ a changing-room attendant and hire someone of the same sex as those using that changing room. This is to accommodate the privacy and personal decency of the customers. 

Compensation

There is no cap or limit on what a victim of discrimination can receive as compensation. Each situation is then evaluated on a case by case basis.

While the outcome may differ depending on the circumstances, the same guidelines and principles are used to judge each case. The court’s objective is to put the victim back into the same position they were in before the discrimination occurred or at least as close as possible.

In some cases, discrimination cases can escalate into what is known as an Employment Tribunal. Employment Tribunals do have the ability to make you pay for damages due to one or more of the following: 

• Emotional or physical distress as a direct result of the discrimination
• Any loss of salary or earnings due to the discrimination (this can include losses up to the time the employee is likely to find a new job if they have to leave their current position)
• Personal injury (including anxiety and depression) that was caused by the discrimination
• Any aggravated damages to the result of the claimants feeling

Although there is no formal limit on claims, the senior appeals court has set out a category of awards that can be claimed under ‘injury of feelings.’ This is additional to the compensation claimed by the original discrimination.

The Injury of Feelings compensation is known as the Vento Scale

1. The lower band (£900 – £8,800)

2. Middle Band (£8,800 – £26,300)

3. Higher Band (£26,300 – £44,000)

These figures are subject to change with inflation, and the current statistics reflect that of March 2019.

Prevention

Failing to protect employees from discrimination runs the risk of lengthy and expensive court costs and harms employee engagement, productivity, morale, loyalty, and retention rates.

Preventing discrimination is an ongoing process which involves the following:

• Creation and enforcement of an anti-discrimination policy for staff, customers and stakeholders that protects them from unlawful and harmful behaviour
• Education packages about diversity and discrimination should be made available to all employees
• Managers must effectively respond to claims of discrimination with respect and discretion
• Any complaint should be addressed promptly

Discrimination at work should be stopped as soon as it is reported or witnessed. Below are the usual steps expected to be taken; however, some steps may be skipped depending on the severity of the situation.

1. Verbal Warning
2. Formal written warning
3. Formal disciplinary meeting
4. Suspension
5. Pay Cut
6. Termination of contract

Takeaway 

The best defence against discrimination is prevention. It is the legal obligation of all organisations and employers to take all the necessary steps to prevent workplace discrimination. Under the Equality Act 2010, all employers are solely responsible for preventing discrimination and monitoring anti-discriminatory measures.

If you’ve been discriminated or are suffering from discrimination in the workplace, our employment discrimination solicitors may be able to help you make a complaint and claim compensation.