Under Equality Act 2010 it is unlawful for an employer to discriminate based on the following protected characteristics:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Employees, job applicants and contract workers are all protected against discrimination. Therefore, it is important to have policies and procedures in place to ensure discrimination does not occur.

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Types of discrimination

Unlawful conduct under the Equality Act 2010 can be direct discrimination, indirect discrimination, harassment and victimisation.

Direct discrimination. An employee claiming direct discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different than their own. The less favourable treatment much be because of a protected characteristic.

Indirect discrimination. This type of discrimination is concerned with acts, decisions and policies which disadvantage a particular protected characteristic, even if that is not the intention them. For example, a good attendance bonus scheme could indirectly discriminate against someone with a disability who has needed time off work.

Harassment. In the Equality Act 2010 harassment is defined as unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

Victimisation. If an employer subjects the employee to a detriment, because the employee has brought a discrimination claim or complained about harassment, that employee could also have a claim for victimisation against the employer.

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Objective justification

If an employer can show that its actions were a proportionate means of achieving a legitimate aim (objective justification), it might be able to avoid liability. Objective justification cannot be used to avoid liability against all discrimination, for example direct discrimination is not generally justifiable.
If an employer is seeking to rely on objective justification as a defence to a discrimination claim it will need to prove the justification to the tribunal. The burden of proof will be on the employer. The employer will need to show there was a legitimate aim, corresponding to a real business need, and that the employer’s actions were a proportionate means of achieving the legitimate aim.

The law around discrimination in the workplace is a complex field. Our solicitors have a tremendous range of experience and expertise to help you navigate employment law. We can help ensure that your business is protected and has robust procedures in place to deal with any claims of this nature. If you have received a claim from an employee, worker or job applicant it is important that you seek advice as soon as possible.

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MS Rubric’s specialist employment law lawyers have the extensive experience and knowledge you need. Call us today on 01454 800 008.

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