Equal opportunities and discrimination

Discrimination is treating someone ‘less favourably’ than someone else. Workplace discrimination law relates to discrimination arising from workplace issues, including: 

• dismissal 

• employment terms and conditions 

• pay and benefits 

• promotion and transfer opportunities 

• training 

• recruitment

• redundancy

Discrimination can occur via decisions, conduct, policies, rules, and more.

The prohibited behaviours that can occur in these various ways are:

• direct discrimination - ie less favourable treatment based directly on a protected characteristic (eg 'a company prefers to recruit over 30s'). There is rarely a legal defence once direct discrimination is proved

• indirect discrimination - where a set of criteria or requirements are applied equally (eg to all genders) but they disadvantage a protected group (eg a requirement to work full time indirectly discriminates against women, due to their on-average holding greater responsibility for childcare). Indirect discrimination is lawful if it is a proportionate means of achieving a legitimate aim

• harassment - ie unwanted conduct violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment 

• victimisation - ie detrimental treatment in response to making or supporting a discrimination claim (whether or not the claim is won)

When is discrimination allowed?

Using protected characteristics without causing detriment to others

Using protected characteristics in recruitment is permitted when it doesn’t cause detriment to another protected group. For example, advertising a position in a magazine with a high female readership in addition to other publications, to encourage women to apply.

Objective justification

Some instances of less favourable treatment can be justified and, therefore, are not unlawful discrimination. This is called objective justification. 

To rely on objective justification, an employer must:

• prove a legitimate aim of the less favourable treatment (eg upholding others’ health and safety), and

• show that the discrimination is a proportionate means of achieving this aim 

Objective justification can generally only be used to justify indirect discrimination or age discrimination. 

An example of an objective justification is a brain surgeon being prevented from performing operations after they lose their eyesight (ie as they now live with a disability), based on a rule that all surgeons must be able to safely carry out operations. 

Positive action

Positive action is lawful for employers to take part in. Positive action involves employers taking action that may involve treating one group that shares a protected characteristic more favourably than others in order to help them overcome a disadvantage or to have their specific needs met. For example, an agriculture company introducing a mentoring scheme for employees with disabilities to address disadvantages that people with disabilities have faced in their industry, or allowing a translator to accompany those with limited English language skills to an Employment Tribunal. 

Subject to limitations, the Equality Act 2010 allows some forms of positive action to take place to address:

• disadvantage

• differing needs, or

• low participation of those with a protected characteristic

Employers must recognise the difference between positive action and positive discrimination. Most importantly, any positive action taken by an employer must be proportionate and the employer must have some evidence to show a condition for positive action has been met. In the previous example, this would be the existing disadvantage in the agricultural sector. This evidence need not be detailed or statistical.

Positive action during recruitment and promotion is also possible but the requirements are stricter. It is only possible to confer advantage on someone because of a protected characteristic when recruiting or promoting if they and the other candidate(s) being considered are equally qualified. Again, the approach to recruitment or promotion must be proportionate and the employer must not have a specific policy regarding favourable recruitment or promotion for those with a protected characteristic. 

For more information, see the government’s guidance intended to help employers achieve positive action lawfully. The guidance recognises that adopting positive action measures could give rise to the risk of legal action and that employers should get legal advice before implementing a programme.

Positive Discrimination

Positive discrimination is when favourable treatment is given to a group with a protected characteristic and this does cause a detriment to another protected group. This is unlawful unless there is:

• a disability exception, or

• an occupational requirement

A person who does not have a disability can't claim they are being discriminated against on disability grounds. The disability exception means that employers can treat a person with a disability more favourably than a person who does not have a disability and can specifically advertise for and recruit employees with a disability.

For an occupational requirement to apply, a protected characteristic must be essential to the main tasks of the position and there must be a good business reason for the requirement (ie an objective justification is required). An example of this would be a male actor playing a specifically male character in a film or only women being recruited to work in a women’s refuge.

Before making a decision that relates to a protected characteristic, employers should seek legal advice. Ask a lawyer if you are considering action around a protected characteristic.

What happens if equality law is breached?

An employer and implicated individuals can be sued and claims are uncapped. A carefully thought out Equal opportunities policy can help protect an employer in the event of claims.

Liability for an employee’s discriminatory actions  

Employers may be liable for the actions of an employee where there is a case of harassment and/or discrimination in the course of employment. Employers must take steps to prevent discrimination and do all they reasonably can to protect people from discrimination.

However, employers do have a defence if they can show that they took all ‘reasonable steps’ to prevent such behaviour.

Examples of an employer taking reasonable steps include:

• having an Equal opportunities policy, Anti-harassment and bullying policy, and Time off for dependants policy

• communicating these policies to staff and making sure they are enforced

• reviewing and keeping policies up to date 

• making employees aware of the consequences of breaching these policies. These could be set out in a Disciplinary procedure 

• holding regular equality and diversity training

• managing grievances in line with an equal opportunities policy

• adopting and reinforcing a zero-tolerance approach to discrimination in the workplace