Types of discrimination (prohibited behaviours)
Direct discrimination
This happens when someone with a protected characteristic is treated worse than someone else in the same situation who does not share the protected characteristic.
To claim direct discrimination you need to compare your treatment with the treatment of someone else who doesn't have the same protected characteristic as you. This person is called a comparator.
Unless there is a legal exemption, direct discrimination can never be excused or defended.
Further information on exemptions can be found on the 'Exemptions' dropdown below.
Direct discrimination by association
If someone treats you differently because of someone you’re with or someone you know or have a close connection with, this is called direct discrimination by association. This means that you can be directly discriminated against not because of a protected characteristic you have yourself, but because of the protected characteristic of another individual.
For example, it’s unlawful to discriminate against you because of the age of someone you’re with or someone you’re linked to. This could be a parent, child, partner or friend.
Discrimination by association does not apply to instances of indirect discrimination (see 'Indirect discrimination' dropwdown below) - it has to be direct discrimination.
The protected characteristics of marriage and civil partnership, and pregnancy and maternity are not covered by this provision.
However, women who are subjected to associative discrimination relating to pregnancy and/or maternity, may be able to make a claim of direct discrimination under the protected characteristic of sex.
Direct discrimination by perception
If someone discriminates against you because you are mistakenly perceived to have a protected characteristic, even though in reality you don't have one, this is called direct discrimination by perception.
Discrimination by perception does not apply to instances of indirect discrimination (see 'Indirect discrimination' dropwdown below) - it has to be direct discrimination.
The protected characteristics of marriage and civil partnership, and pregnancy and maternity are not covered by this provision.
However, women who are subjected to perceptive discrimination relating to pregnancy and/or maternity, may be able to make a claim of direct discrimination under the protected characteristic of sex.
Indirect discrimination
This happens when an organisation makes a decision or puts in place policies, practice or rules which put people from one group with a particular protected characteristic at a disadvantage compared to others without that characteristic.
The policy, practice or rule can be formal or informal and includes things like arrangements, criteria, conditions, qualifications or provisions.
Harassment
If you experience behaviour that makes you feel intimidated, humiliated, or degraded, or behaviour that creates a hostile environment and is because of or connected to a protected characteristic, this may be harassment
Types of harassment:
- harassment related to a ‘relevant protected characteristic’
- sexual harassment
- less favourable treatment of a worker because they submit to, or reject, sexual harassment or
- harassment related to sex or gender reassignment
Harassment can be verbal or non-verbal and need not happen face-to-face.
Behaviours might include but are not limited to:
- gossip
- jokes, insults or put-downs
- inappropriate content or tone of an email, tweets or social media
- intimidation
- facial expressions
- constant criticism or deliberately undermining someone
- unwelcome sexual advances, including touching, standing too close, the display of offensive materials, asking for sexual favours, or making decisions on the basis of sexual advances being accepted or rejected.
A serious one-off incident can also amount to harassment.
If the harassment is because of a protected characteristic that you do not have, but is because of a characteristic of someone you are associated with, this is known as harassment by association. For example, a non-Jewish employee with a Jewish partner is subjected to inappropriate workplace 'banter' about Jews. Or if the harassment is because of a protected characteristic that you do not have but someone thinks you have, this is called harassment by perception. For example, a heterosexual man is subjected to inappropriate comments from his colleagues about him being gay. He finds this offensive and upsetting.
Harassment related to religion or belief and sexual orientation is prohibited only in relation to employment. However, if you are harassed or receive offensive treatment because of religion or belief outside the workplace this may be direct discrimination.
What’s not protected under harassment?
Pregnancy and maternity and marriage and civil partnership are not protected directly under the harassment provisions. However if you are harassed because of:
- pregnancy and maternity, this may amount to harassment related to sex or
- marriage or civil partnership, this may amount to harassment related to sexual orientation (sexual orientation is prohibited only in employment)
If someone behaves in a way which makes you feel distressed, intimidated or offended and the behaviour is of a sexual nature, this is called sexual harassment.
Sexual Harassment
Sexual harassment is unwanted behaviour of a sexual nature which is either meant to or has the effect of:
- violating your dignity
- making you feel intimidated, degraded or humiliated
- creating a hostile or offensive environment
You don’t need to have previously objected to someone's behaviour for it to be considered unwanted. Once is enough.
Sexual harassment can include:
- sexual comments or jokes
- physical behaviour, including unwelcome sexual advances, touching and various forms of sexual assault
- displaying pictures, photos or drawings of a sexual nature
- sending emails with a sexual content
Third party harassment
Employers may be liable for harassment of an employee by a third party if the employer’s inaction is conduct 'related to' a protected characteristic causing a hostile, intimidating or degrading environment. This only applies to the characteristics of sex, age, disability, gender reassignment, race, religion or belief and sexual orientation and DOES NOT APPLY to marriage and civil partnerships or pregnancy and maternity.
View examples of harassment.
Victimisation
Victimisation is when someone treats you badly or subjects you to a detriment because you complain about discrimination or help someone who has been the victim of discrimination.
Detriment means you’ve suffered a disadvantage of some sort or been put in a worse position than you were before.
The Equality Act recognises that you may be worried about complaining, so you have extra legal protection when you complain about discrimination.
Failure to make reasonable adjustments
This is referred to in the Equality Act as ‘failure to comply with a duty to make reasonable adjustments.’ It is a form of discrimination not to make reasonable adjustments.
For this to apply to employers, they need to know or should know about your disability, and the adjustments you asked for were ‘reasonable’.
For this to apply to service providers, there is a duty to anticipate different types of disabilities before a disabled person tries to access the service. For example, different coloured floor markings for visually impaired people or a doorbell for people with mobility issues if it is not possible to provide a ramped access may be considered to be reasonable adjustments.
Exemptions
There are specific exemptions to the Act allowing discrimination on the basis of protected characteristics, in certain situations.
Objective justification of discrimination
The Act says discrimination can be justified if the person who is discriminating against you can argue that it’s a proportionate means of achieving a legitimate aim.
Discrimination can only be justified in certain situations. These are:
- indirect discrimination
- discrimination because of something connected to your disability, this is called discrimination arising from a disability and
- direct age discrimination
A legitimate aim is a genuine or real reason that in itself is not discriminatory. Examples of legitimate aims may include running an efficient service, requirements of a business and the health and safety of individuals.
Example
A hospital advertises a surgeon’s job for which it requires at least ten years’ experience. You can’t meet this requirement because you’ve taken time off work to care for your children. As you’re a woman, this looks like indirect discrimination because of sex. But the hospital may be able to justify this, if it can show that the job can’t be done properly without that amount of experience. This is likely to be a legitimate aim.
Proportionate means that the aim must be appropriate and necessary. The discriminatory impact must be balanced by the importance and benefits of the reason or aim. If there is a reasonable, less discriminatory alternative, it would be more difficult to justify discrimination.
Example
The fire service requires all job applicants to take a number of physical tests. This could be indirect discrimination because of age, as older people are less likely to pass the tests than younger applicants. But the fire service can probably justify this. Fire fighting is a job which requires great physical capability. The reason for the test is to make sure candidates are fit enough to do the job and ensure the proper functioning of the fire service. This is a legitimate aim. Making candidates take physical tests is a proportionate way of achieving this aim.
It is important to note that economic reasons alone cannot justify discrimination. Someone can’t justify discrimination by saying it’s cheaper to discriminate. But costs can be taken into account as part of the justification if the person can show there are other good enough reasons for the treatment.
Positive Action in the Workplace
Years of discrimination have created an imbalance in some situations. To redress the imbalance, the Equality Act provides employers the power to remedy the disadvantage. This is done through “positive action” measures and applies to both job applicants and employees.
Examples of positive action include:
- offering shadowing or mentoring to groups with particular needs
- hosting an open day specifically for under-represented groups to encourage them to get into a particular field or to make an application or
- favouring the job candidate from an under-represented group, where two candidates are ‘as qualified as’ each other
For example, giving extra training to female members of staff to help them be able to apply for a particular role if very few or no women have been employed in that role in the past.
Positive action must not be confused with positive discrimination which is generally unlawful, e.g. the setting of quotas (as opposed to targets, which are lawful) or any form of preferential treatment.
Positive Discrimination
Positive discrimination is generally prohibited under the Act, unless an occupational requirement applies (see below). For example, an employer is not allowed to insist on only recruiting or promoting women to a particular job because women have previously been discriminated against when applying for that role. This would be unlawful.
Positive discrimination because of a person's disability is allowed, and may sometimes be required if there is a duty to make reasonable adjustments which allows a person to be treat a disabled person more favourably than a non-disabled person.
Occupational requirement
There are certain jobs that may require a person to have a particular protected characteristic, for example, women support workers in women's refuges. This is called an occupational requirement.
An occupational requirement can only arise for a few specific jobs. It is important to understand that this exception is very limited, and in these rare cases, discrimination by the employer in favour of the particular protected characteristic will be allowed. An occupational requirement can only be claimed where it is necessary for the relevant duties to be carried out by a specified protected characteristic, not merely because it is preferable.
