Guide

Prevent discrimination and value diversity

Equality law and types of discrimination

It is unlawful to discriminate on the grounds of:

  • sex
  • pregnancy and maternity leave
  • being married or in a civil partnership
  • gender reassignment
  • disability
  • race
  • age
  • sexual orientation
  • religious belief, similar philosophical belief or political opinion
  • trade union membership or non-membership
  • status as a fixed-term or part-time worker

Who the legislation applies to

The equality laws ban discrimination by all employers, regardless of their size, and offer protection against unlawful discrimination to:

  • job applicants
  • employees
  • contract workers

In the field of employment and occupation the laws also ban discrimination by some service providers against their service users or prospective users, such as:

  • institutions of further and higher education
  • employment agencies
  • providers of vocational training
  • providers of vocational qualifications

The laws also ban discrimination by a number of other occupational bodies, such as:

  • trade associations and trade unions against their members or prospective members
  • the trustees and managers of occupational pension schemes against members or prospective members
  • partnerships against their partners or prospective partners

The types of discrimination

There are generally four types of discrimination:

  • direct discrimination - treating somebody less favourably on the grounds of sex, race, religion etc. This can also include treating somebody less favourably because of their association with a person who has a particular characteristic eg a disabled person or a gay person, etc
  • indirect discrimination - applying a rule to all individuals equally but which in practice causes greater disadvantage for members of one group compared to those in another eg women compared to men, black people compared to white people and cannot be justified
  • harassment - see bullying and harassment
  • victimisation - treating someone unfairly because, for example, they plan to raise, or have raised, a discrimination-related grievance or they have supported someone else in raising such a grievance

The Equality Commission website provides further information about the definitions of discrimination.

Although some of the above also apply to discrimination against disabled people, there are also some other special types of disability discrimination - see discrimination against disabled people.

Is discrimination always unlawful?

The types of discrimination known as harassment and victimisation are always unlawful.

A decision that is directly discriminatory will normally be unlawful unless:

(a) in an age discrimination case, the decision can be objectively justified,

or

(b) in any other case, an employer can rely on a statutory exception, such as-

  • a genuine occupational requirement exception where the job needs to be done by a person who has a particular characteristic (eg the job holder needs to be a woman in order to preserve the decency and privacy of women service-users who may be undressed)
  • a positive action exception where an employer is taking action to encourage members of an under-represented or disadvantaged group to apply for work with them (eg by adding the following statement to a job advertisement: "we would particularly welcome applications from Roman Catholics and women”).

A rule or practice (eg a job selection criterion) that is indirectly discriminatory will normally be unlawful unless it can be objectively justified or is permitted by another statutory exception (eg an exception for positive action).

For example, if an employer has a general rule that puts women or people with a particular religious belief at a greater disadvantage compared to others but the reason for applying that rule is reasonably necessary and genuinely helps the employer to meet a legitimate aim, then the rule may be justified and unlawful.

Where discrimination can occur

The equality legislation affects all areas of employment including:

  • recruitment
  • terms and conditions
  • promotions and transfers
  • the provision of training
  • the provision of pay and benefits
  • dismissal, retirement or redundancy
  • occupational pensions
  • work placement opportunities
  • disciplinary procedures
  • performance and attendance management procedures
  • the way the work is arranged and performed
  • the physical features of an employer's premises
  • how employees behave towards one another (eg harassment and bullying)

Discrimination can also occur after an employment contract has ended, eg a former employee can bring a discrimination claim after they have left if they get an unfavourable reference because they threatened to bring a discrimination claim.

Industrial tribunal claims and discrimination

Aggrieved individuals have the right to bring their complaints of alleged discrimination in employment to the Fair Employment Tribunal, in the case of complaints of religious or political discrimination, or to an industrial tribunal, in the case of all other equality grounds.

Any claim to an industrial tribunal will normally have to be brought by the employee concerned within three months of the alleged discriminatory act occurring. However, in cases of religious or political discrimination, claims in the Fair Employment Tribunal normally have to be brought within three months of the claimant’s date of knowledge of the alleged act of discrimination or within six months of the date of the alleged act, whichever is the earlier.

However, in the case of current employees, the tribunal would expect them to raise a formal grievance with you before bringing the claim. See managing conflict. If they fail to do so, it may reduce the amount of any compensation it may award to the employee by up to 25 per cent.

Read more on handling grievances.

There are no length-of-service or age requirements for bringing a discrimination claim and claimants do not need to have left your employment nor even to be your employee (eg an unsuccessful job applicant may bring a complaint).

For their claim to succeed, you will then need to prove the existence of facts from which the tribunal could conclude that you have committed an act of unlawful discrimination.

If the claimant is able to do this, you must prove to the tribunal that you did not commit the unlawful act.

If an industrial or fair employment tribunal does in fact find that unlawful discrimination has occurred, penalties can be high, since there is no statutory cap on compensation levels.

It's very important to remember that, as a business owner or manager, you may be held responsible for any discriminatory action by your employees if you cannot show that you took such steps as are reasonably practicable to try and prevent such action occurring - see monitoring equality and diversity - employer responsibilities and promoting equality and diversity.