The Equality Act 2010 protects if you have a protected characteristic and you’re treated unfairly because of their protected characteristic. There are 9 protected characteristics which are protected by the Equality Act 2010: –
- gender reassignment
- marriage and civil partnership (in employment only)
- pregnancy and maternity
- religion or belief
- sexual orientation
Types of Discrimination
There are different types of discrimination set out in the Equality Act 2010:
Direct discrimination occurs where an individual receives less favourable treatment “because of a protected characteristic” when compared to others that do not hold that protected characteristic. A tribunal will have to consider the reason why an individual was treated less favourably to determine whether it relates to a protected characteristic. When determining whether this has occurred, the Employment Tribunal would do so by reference to a real or hypothetical comparator.
Relates to acts, decisions or policies (sometimes known as a policy, criterion or practice) which are not intended to treat anyone less favourably, but which, in practice, have the effect of disadvantaging a group of people with a particular protected characteristic.
Acts of indirect discrimination do not always result in liability on behalf of the employer if they can be objectively justified. This happens if the act, decision or policy, was introduced as a “proportionate means of achieving a legitimate aim”. This means that the Employment Tribunal will be required to conduct an assessment to determine whether the legitimate business needs are sufficient to outweigh the potential act of indirect discrimination.
Harassment is 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. When considering harassment claims, the Employment Tribunal will also take into account the perception of the victim, any other circumstances of the case and whether it is reasonable or not for the conduct complained of to have the effect it has had on the victim.
Legally, victimisation is when someone is subject to a detriment because they have done a protected act (or believe that they have done a protected act or may do). A protected act includes bringing a claim under the Equality Act 2010, helping someone else to make a claim under the Equality Act 2010, making an allegation that someone else has breached the Equality Act 2010 or otherwise doing anything for the purposes of or in connection with the Equality Act 2010.
Instructing, causing, inducing or knowingly helping unlawful acts
Section 111 of the Equality Act 2010 also makes it unlawful for an individual to instruct, cause, induce, or help someone to discriminate against another person. An example of this may be the employee immediately senior to the recruitment manager telling them to delete job applications from anyone with a foreign sounding surname. This is another way that the law protects individuals from any potential acts of discrimination.
The law also protects those that have been the victim of associative discrimination. This is a type of discrimination based on someone’s association with another person that hold one of the above protected characteristics. An example of this could be withdrawing the offer of a job because the applicant’s partner is of a certain race or because their partner is thought to be of a different faith.
A discrimination claim must normally be submitted to an employment tribunal before “the end of the period of three months starting with the date of the act to which the complaint relates”.
Acts of discrimination which occurred greater than three months ago, may still form the basis of the claim if they are part of “conduct extending over a period”. This is called a “continuing act”. Where an act or acts of discrimination extend over a period, they are treated as having occurred at the end of the course of discriminatory conduct.
If you think you may have suffered from an act of discrimination, or you are an employer looking for advice on your obligations under the Equality Act 2010, please get in touch with a member of our specialist employment team today.