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Workplace discrimination remains one of the most complex and high-stakes areas of UK employment law. For employees, experiencing unlawful treatment can be personally devastating; for businesses, a single claim can lead to uncapped financial penalties and severe reputational damage. Under the Equality Act 2010, navigating these disputes requires an understanding of legal tests, evidentiary standards, and the procedural mechanics of the Employment Tribunal.
What is discrimination and its consequences?
Discrimination is treating someone less favourably than someone else due to protected characteristics such as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or beliefs, sex and sexual orientation. There is no legal definition of putting someone at a disadvantage, but it may include excluding someone from opportunities or benefits, making it harder for someone to do their job, causing someone emotional distress or causing someone financial loss.
It can still be discrimination even if the less favourable treatment was not intended.
An individual is protected from discrimination at work, in education, as a consumer, and when using public services, when buying or renting property, as a member or guest of a private club or association. You are legally protected from discrimination by the Equality Act 2010.
The Equality Act 2010 protects the following people against discrimination, so anyone who works for an employer, contractors, self-employed people hired to personally do the work, job applicants and former workers.
By law, all employers must make sure they do not unfairly discriminate in any aspect of work and take the right steps to prevent discrimination, do all they reasonably can to protect people from discrimination by others and look after the wellbeing of their workers as it is a duty of care.
Not doing these things can cause harm and distress and could result in discrimination complaints and employment tribunal claims.
Employers can be held legally responsible for the actions of their workers, which is vicarious liability.
The types of discrimination
Direct Discrimination (Section 13): This occurs when a person treats another person less favourably than they treat or would treat others because of a protected characteristic. The court applies the “but for” test: for the claimant’s protected characteristic, would they have been treated differently? If the answer is yes, then direct discrimination is established.
Indirect discrimination is when an employer treats everyone the same, but people with a protected characteristic are at a disadvantage.
Harassment is when someone behaves in a way that is related to a protected characteristic and that behaviour either violates someone’s dignity or creates an offensive environment. Intention does not matter; it is judged from the victim’s perspective. For example, a manager who repeatedly makes jokes about a young female’s employee’s ability, believing it to be funny, may still be guilty of harassment on grounds of sex and age if she finds it humiliating.
Victimisation under section 27 is treating someone badly because they did a “protected act” such as making a discrimination complaint, supporting someone else’s complaint, or giving evidence at a tribunal. For example, if an employee raises a discrimination grievance and is then excluded from meetings or given a bad performance review as a result, that is victimisation even if the original complaint was never proven.
Discrimination law and the Equality Act 2010 have brought together and restated previous equality law and made a variety of further changes which aimed to harmonise provisions and to give a single approach where it is appropriate. The Equality Act 2010 has cancelled most of the existing legislation, but the Equality Act 2006 remains in force so far as it relates to the constitution and the operation of the Equality and Human Rights Commission.
How would you show the court that you have been discriminated against?
In discrimination cases, the employee goes first. They show the tribunal evidence that suggests discrimination may have happened. The employer must then explain why they acted the way they did. If they cannot give a good enough reason, the tribunal will find in the employee’s favour.
The law protects you against discrimination at work, including:
Dismissal, employment terms and conditions, pay and benefits, promotion and transfer opportunities, training, recruitment and redundancy.
Furthermore, the forms of discrimination are only allowed if they are needed for the way the organisation works, such as employing only women in a health centre for Muslims and a Roman Catholic school restricting applications for admission of pupils to Catholics only.
Workplace discrimination law is complicated, but the purpose of it is simple: it ensures that everyone is treated fairly and equally at work. If you believe you have experienced discrimination, seeking early legal advice is strongly recommended.
By Shantal Remzi, a law student at Solent Southampton University
