How can businesses avoid discrimination claims?

Nick Hobden explains the difference between direct and indirect discrimination, as well as how employers can reduce the risk of falling foul of the legislation

Discrimination is defined as treating someone differently and less favourably because of a protected characteristic. The protected characteristics are defined in the Equality Act 2010 and are: race, religion or belief, age, sex, sexual orientation, gender reassignment, marriage and civil partnership, and disability. 

Within employment, there are two types of discrimination; direct and indirect. Direct discrimination is directly treating someone unfairly because of a protected characteristic, for example if a well-qualified employee is not offered a job promotion because they are a woman but a less qualified man received the role. 

Indirect discrimination is where rules or arrangements (referred to as a provision criterion or practice) have a less favourable effect on a particular group who share the same protected characteristic, such as asking all employees to start working on Sundays may be discriminatory to Christians who could not work on Sundays. 

The employer must show that the rule or arrangement was a proportionate means of achieving a legitimate aim. For example, an airline request that all pilots must have 20/20 vision, an applicant who is 50 claims that this is age discrimination as eye sight deteriorates as you get older. The airline said that the 20/20 vision requirement is a proportionate means of achieving a legitimate aim as pilots need to ensure the safety of hundreds of passengers and so 20/20 vision is necessary. 

In 2021, CIPHR conducted a survey of 2,000 UK adults, more than a third of which reported experiencing workplace discrimination. The most common form of discrimination reported was age discrimination, and sex, disability and race were also among the top reasons for discrimination. Young people appear to be particularly affected: 66 per cent of students said they had been discriminated against, either while in employment or when applying for a job.

Discrimination in the workplace can have a significant and serious impact on the lives of those who it affects. As a result, many individuals being discriminated against have feelings of isolation which may lead to mental health concerns. The 2020 TIDES study found that acts of discrimination are associated with greater psychological stress, anxiety and depression as well as poorer physical health. Therefore, the importance of mitigating the risk of discrimination is crucial.

To bring a claim for discrimination, employees do not have to have a specific length of service, however if an employee believes there has been discrimination, a claim must be made within three months less one day from the act of discrimination or from the most recent act if the discrimination was ongoing. Would-be claimants must obtain a certificate of early conciliation from Acas first to start a claim. That process can extend the three-month time limit by a further one month. Awards for discrimination include compensation which is uncapped and will invariably include compensation for injured feelings.

From the above statistics, it is clear that more work needs to be done to tackle discrimination within the workplace. Acas recommends the following:

  • Making sure employers do not ask questions related to protected characteristics in the interview process, such as ‘are you married?’ or ‘are you planning on having children soon?’
  • Providing an up-to-date equality policy and regular anti-discrimination training to all staff and employees.
  • Having a non-judgmental and open channel of communication when discrimination does happen and comforting employees that their claims will be taken seriously.
  • Having regular, private one-on-one conversations and catch ups with employees, ensuring that any concerns are dealt with quickly and confidentially. 

Nick Hobden is head of employment at Thomson Snell & Passmore