I have been discriminated against - a guide to workplace discrimination

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Do you feel that your employer has discriminated against you?
Have you got grounds for a discrimination claim?

Discrimination is a word that is used by people as a label to mean many different things. It essentially means “less favourable treatment”.

It is a word that seems to be used a lot in our society.

However, in employment law it has a very specific meaning. Not every act of “less favourable” treatment will translate into a legal claim against your employer. Further, in some cases, even if there has been less favourable treatment, your employer may have a defence to the claim.

What do I need to show in order to be able to bring a discrimination claim?

Firstly let’s look at basic eligibility to bring a claim. Unlike unfair dismissal, these claims are not limited to employees. The scope of Claimant who can bring a claim is wide. In the employment field job applicants, employees, ex employees, contract workers, and agents are eligible to bring claims. However the claim must in some way relate to employment or a job application. There is no minimum service requirement.

Direct discrimination is where your employer treats you less favourably than a comparable employee “because of” what is known as a “protected characteristic”. Therefore, discrimination is not simply less favourable treatment than another, it has to be less favourable treatment because of a protected characteristic. Well known protected characteristics are:

Sex
Race
Disability
Sexual orientation
Religion/religious belief
Age

An obvious example is where a woman is turned down for a job because the employer would prefer a man. This would be sex discrimination. A less obvious example is where an employee is subjected to disciplinary proceedings and adverse comments from an employer because they have taken a lot of time off work. The time off was necessary in order to look after a disabled relative. Here there is less favourable treatment “because of” a protected characteristic, ie disability. The person making the claim does not have to possess the protected characteristic themselves.

Are there any other sorts of claim?

Yes, aside from direct discrimination, there is indirect discrimination. This is more complicated but in essence you have to show that your employer has applied an apparently neutral policy or practice in the workplace but one which has disadvantaged you on the grounds of a protected characteristic and one which in general does have a disparate effect on people of that characteristic.

An example is where an employer applies redundancy selection criteria across its workforce one of which is number of days sickness absence. Nothing wrong with that per se, and this might be a sensible criteria to use. However, if the employer does not discount disability related time off then there is a risk of an indirect disability discrimination claim. Unlike direct discrimination, the employer may have an opportunity of trying to justify his actions (a justification defence) but this defence can be quite hard to run successfully.

Can you give me some examples of circumstances which might amount to discrimination?

There are some obvious ones:

Unjustified failure to permit time off for religious employees to attend religious festivals
Removing a length of service related benefit scheme – which disproportionately disadvantages older employees on the basis that they tend to have longer service and therefore more to lose under the scheme.
An unjustified requirement to spend long periods of time working away from home – possible indirect discrimination against women who statistically will be less able to comply with this job requirement due to child care commitments
Making a part time secretary redundant whilst keeping full time secretaries – statistically more part time workers are women, and in any event discrimination on the basis or part time status (a separate topic!)

Is it worth bringing a claim?

This depends on a number of factors including the merits of succeeding with the claim, the seriousness of the matter, whether you have suffered financial loss and “injury to feelings”, whether you have tried to sort matters out first with your employer, and whether you have the determination and financial means to pursue a claim. Claims can be very time consuming and costly to bring. They can have an emotional impact for both employer and employee.

Disclaimer – The contents of this page are provided for general guidance only and do not replace the need to obtain legal advice about any given situation.