Types of Discrimination Under Equality Act 2010 

Types of Discrimination

This  is a useful guide and highlights the definitions as laid out in

the new Equality Act 2010 that refers to discrimination, harassment 

and victimisation.

Protected characteristics are the grounds upon which discrimination is unlawful.

The protected characteristics under the Equality Act 2010 are:

1. Age,
2. Disability  
3. Gender reassignment
4.  Marriage 
5. Civil Partnership
6.  Pregnancy
7. Maternity
8.  Race
9.  Religion or belief (including lack of belief
10.  Sex and Sexual Orientation

The 4 types of Discrimination

There are 4 main types of discrimination under the Equality Act:

·         Direct discrimination

·         Indirect discrimination

·         Harassment

·         Victimisation

1)  Direct discrimination

There are three different types of direct discrimination.

Direct discrimination occurs when a person is treated less favourably because of:

·         A protected characteristic they possess. This is ordinary direct discrimination. It is the only type of direct discrimination which may be lawful, but only if it is ‘objectively justifiable’.

·         A protected characteristic possessed by someone who they are associated with (such as a member of their family or a colleague). This is direct discrimination by association.

·         A protected characteristic they are thought to possess, regardless of whether the perception is correct or not. This is direct discrimination by perception.

Although there is normally a deliberate act or exclusion, direct discrimination does not have to be intentional. This means that even if discrimination occurred unintentionally, a claim can still succeed.

2)  Indirect discrimination

Indirect discrimination is usually less obvious than direct discrimination and is normally unintended.

Generally speaking, it occurs when a rule or plan of some sort is put into place which applies to everyone; and is not in itself discriminatory but it could put those with a certain protected characteristic at a disadvantage.

In law, it is where a ‘provision, criterion or practice’ (PCP) involves all these four things:

1.      The ‘PCP’ is applied equally to a group of people, only some of whom share the protected characteristic

2.      It has (or will have) the effect of putting those who share the protected characteristic at a particular disadvantage when compared to others who do not have the characteristic

3.      It puts, or would put, the person at that disadvantage

4.      The employer is unable to objectively justify it.

The Equality Act does not define what a ‘PCP‘ is.  The term is most  likely to include an employer’s policies, procedures, requirements, rules and arrangements, even if informal, and whether written down or not.

Although all four elements must apply for a claim to be successful, it would be the responsibility of the employee (or ‘claimant’) to demonstrate point 2, and to demonstrate that point 3 applies to themselves personally.

3)  Harassment 

Harassment is ‘unwanted conduct’ related to a protected characteristic. It must have the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Bullying, nicknames, gossip, intrusive or inappropriate questions and comments can be harassment. Excluding someone (not inviting them to meetings or events) may also qualify.  To say the behaviour was not meant to cause offence or was ‘banter’, is not a defence. With harassment, how the victim sees the conduct is more important than how the harasser sees it.  Someone who witnesses this type of conduct can claim harassment if it has had a negative impact on their dignity at work, even if they do not share the characteristic as the colleague who was harassed.

4)  Victimisation

Victimisation occurs when an employee suffers a ‘detriment’ because they have done (or because it is suspected that they have done or may do) one of the following things in good faith:

·         Make an allegation of discrimination

·         Support a complaint of discrimination

·         Give evidence relating to a complaint about discrimination

·         Raise a grievance concerning equality or discrimination

·         Do anything else for the purposes of (or in connection with) the Equality Act, such as bringing an employment tribunal claim of discrimination

A ‘detriment’ can include a loss, disadvantage, damage or harm. For example, being labelled a ‘troublemaker’, being left out and ignored, being denied training or promotion, or being made redundant.

Lawful Discrimination 

When can discrimination be lawful? In limited circumstances, ordinary direct discrimination and indirect discrimination may be lawful if the employer can objectively justify it (the law calls this ‘a proportionate means of achieving a legitimate aim’).

The employer must show that the less favourable treatment or PCP was appropriate and necessary (this must be objective and usually involves a business need). What is ‘proportionate’ will vary from case to case and can also depend on the size and resources of the business. For example, a large employer with many staff may find it easier to approve flexible working requests, which may come mostly from women with childcare responsibilities, than a small firm may be able to if they only have a few staff.