Workplace discrimination is rarely clear-cut. Although some cases of discrimination are obvious, like denying a candidate employment based on their race or gender, numerous others are subtly embedded in daily decisions, policies or beliefs that disadvantage specific groups of workers. Understanding how discrimination occurs in reality is essential, not just for workers aiming to uphold their rights but also for employers who have a legal obligation to foster equality in the workplace.
This guide provides a practical overview of what amounts to discrimination under the Equality Act 2010 (The Act) and how discrimination can manifest in typical workplace situations. The Act is the principal legislation governing discrimination in the UK. It applies to all stages of employment: from recruitment and working conditions to promotion, dismissal and even after employment has ended.
What is discrimination under the Equality Act 2010?
Under the Act, discrimination occurs when a person is treated "less favourably" than others because of a "protected characteristic.” Less favourable treatment can be any action that places an individual with a protected characteristic at a disadvantage when compared to someone without that characteristic. Such treatment can be direct or indirect, and importantly, it does not have to be intentional to be unlawful.
The consequences for employers can be severe if they are found to have discriminated against an employee. Compensation for a successful discrimination or harassment claim in the Employment Tribunal is uncapped. Beyond financial liability, however, workplace discrimination damages trust, morale and an organisation’s reputation, often far more severely than any legal penalty.
The protected characteristics under the Equality Act 2010
The Act protects individuals from discrimination on the grounds of nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. As such, an act will only amount to unlawful discrimination if it is connected to one (or more) of these characteristics.
For a detailed explanation of each characteristic and practical examples, see our article ‘Protected Characteristics under the Equality Act 2010: A Practical Guide for Employers’.
Everyday examples of workplace discrimination
Discrimination at work is not always obvious. It often operates quietly within everyday decisions and workplace practices that seem fair on the surface but end up disadvantaging certain groups. Recognising these patterns is crucial to ensuring equality and fairness at work.
Recruitment and hiring discrimination
The recruitment process is one of the most common areas where discrimination can occur, often unintentionally. Job adverts, interview questions or shortlisting criteria that rely on assumptions rather than objective requirements can exclude certain candidates unfairly.
Example: An employer advertises for “recent graduates” indirectly disadvantaging older applicants. Similarly, rejecting a candidate because their foreign qualifications are “unfamiliar” may constitute race discrimination if no effort is made to verify equivalence.
Employers should be actively looking at ways in which discriminatory treatment might factor into recruitment processes and how this can be avoided. Reviewing person specifications and job advertisements to ensure that non-discriminatory language is used will always be a good starting point. Blind recruitment (i.e. where applications/CVs are anonymised) is an increasingly common way to avoid unconscious bias at application stage. Interviewing managers should also be given training on questioning and topics or questions to avoid. For instance, it would not be appropriate to ask a candidate at interview whether they are married or have children.
Promotion and career progression bias
Decisions around promotion and development opportunities can also be influenced by bias, often unintentionally. Managers may often unconsciously overlook certain employees based on assumptions about their commitment or capability.
Example: A woman returning from maternity leave is told she is “not ready” for promotion or should “focus on family first.” This constitutes direct discrimination on grounds of sex and maternity.
Employers should ensure promotion processes are transparent, evidence-based, and inclusive, with decisions recorded and objectively justified. Employers should aim to have a promotion policy and clear guidelines for decision makers on how to approach a promotion decision. Employers should seek to reduce subjective elements of any criteria and focus on objective targets. It is also worth ensuring that any criteria which might particularly disadvantage a group who share a protected characteristic are either changed or specifically excluded from consideration. For example, periods of sickness for disabled employees should not be a factor in whether they achieve a promotion or not.
Workplace rules and policies
Even well-intentioned policies can have discriminatory effects. This is often where indirect discrimination arises, when a seemingly neutral policy puts certain groups at a disadvantage.
Example: A rule requiring all employees to work late evenings may disadvantage parents or those with religious observances.
Case law has confirmed that it is sufficient to show that a neutral policy puts a protected group at a particular disadvantage. As a result, employers need to be acutely aware of accidentally discriminatory policies.
Employers should regularly review policies through an equality lens and be prepared to justify requirements as a proportionate means of achieving a legitimate aim in the event that it is felt that a discriminatory requirement is essential within the workplace.
Harassment and workplace culture
A toxic workplace culture often develops gradually through “banter,” exclusion or offhand comments that go unchallenged. Harassment can occur even without the intent to offend. What matters is the effect it has on the recipient.
At Wright Hassall, we regularly deliver training on the difference between banter and harassment. Well intentioned banter to build camaraderie does have a place within a workplace however many employees are not familiar with when this crosses the line into harassment, placing their employer as well as themselves at risk.
Example: Colleagues repeatedly mock an employee’s accent or make jokes about their religion intended as humour.
Building a respectful culture where inappropriate behaviour is addressed promptly is the most effective prevention strategy. Training employees at all levels is essential for raising awareness of discrimination and harassment in the workplace. Equally, employers should ensure employees feel confident reporting inappropriate behaviour and trust management to address such behaviours if reported. A clear and robust grievance policy is critical to achieving this.
Redundancy and performance management discrimination
Discrimination can also arise in redundancy selection or performance management processes, particularly where subjective criteria are used.
Example: Selecting an older employee for redundancy because they are “closer to retirement,” or penalising a disabled employee for lower attendance without adjusting for their condition.
Employers should ensure that redundancy criteria are clear, measurable and consistently applied and that any impact on protected groups is assessed in advance. In the same way as with recruitment, objective scoring should be used in redundancy exercises and at least two people should score each person at risk of redundancy to combat favouritism and unconscious bias. Criteria no matter the process should always be open and transparent – all employees should be entitled to see the criteria they are being assessed against.
Employer responsibilities under the Equality Act 2010
Employers carry a statutory duty to prevent discrimination and promote equality in the workplace. Employers are vicariously liable for discriminatory acts committed by their employees in the course of employment, unless they can demonstrate that they took “all reasonable steps” to prevent such conduct. We have set out above some considerations which employers should have to ensure that it is protecting itself in the case of unlawful discrimination. The bar is however a high one to avoid being vicariously liable.
Employers should also:
- Conduct equality impact assessments when introducing new policies looking at the aims of the policy, identifying any impact on equality and assessing impact on particular groups and the policy builds in reasonable adjustments.
- Keep transparent records of recruitment, promotion and pay decisions.
- Foster a workplace culture where inappropriate behaviour is challenged and inclusion is visibly championed by leadership.
For employees with disabilities, making reasonable adjustments, such as flexible working, assistive technology or modified duties, is a key part of compliance and good practice.
Objective justification: Legal defence for employers
Objective justification is a legal defence employers can rely on when a policy, practice or requirement indirectly discriminates against workers with a protected characteristic. In simple terms, even if a rule or decision puts a particular group at a disadvantage, it may still be lawful if the employer can objectively justify it.
To be able to prove objective justification, the employer must show:
- That such policy or requirement is for a legitimate aim: Such aim must be real and lawful and not discriminatory in itself. Examples of legitimate aim include ensuring health and safety, achieving business or customer service needs or maintaining operational efficiency.
- That such policy or requirement is a proportionate means of achieving that aim: The policy must be appropriate and necessary and there must not be a less discriminatory alternative available. That is, the employer must balance the importance of the aim against the discriminatory impact on the affected individuals or group.
For example, a requirement that all new hires for managerial roles must have a recent postgraduate qualification could indirectly discriminate against older applicants, who are less likely to have recently completed their studies. It might be objectively justified only if the employer can show that the qualification is genuinely necessary to perform the role and there are no less discriminatory ways (like an experience-based assessment) to achieve the same goal.
Employee rights and remedies for workplace discrimination
Employees who experience discrimination at work are protected by the Equality Act 2010. However, the implications of discrimination and harassment in the workplace can be wider than this and might include the following:
Raising a grievance
Employees may first use their employer’s internal grievance process. Under the ACAS Code of Practice, grievances must be handled fairly, with prompt investigation, a written outcome and the right to appeal.
ACAS early conciliation
Before filing a claim, employees must contact ACAS for early conciliation, which is a confidential, time-limited opportunity to resolve matters without litigation. Employers should take advice on their prospects of defending any claim if this were to occur as early conciliation can be a good resolve matters whether to reduce risk or on a purely commercial basis.
Protection from victimisation
Employees have a separate right of action if they face retaliatory treatment for raising or supporting a discrimination complaint. Therefore, if a colleague of an employee supports their grievance, for instance, to confirm an allegation then employers will need to be mindful that that employee is supported after the event and that no adverse treatment is suffered.
Conclusion: Building an inclusive workplace culture
Discrimination in the workplace remains a pressing challenge for employers. Although the Act provides a clear legal framework, preventing discrimination in practice often depends on awareness, attitude and culture rather than legislation alone. Prevention and awareness remain the best tool in the arsenal of an employer to minimise the likelihood of discrimination taking place in the workplace. This duty does not stop at well-written policies and annual training. Employers should aim to create an environment where people feel respected, supported and confident to speak up. Taking those “reasonable steps” should not be seen as a box-ticking exercise but as part of building a healthy and productive workplace.
If you need guidance on preventing or addressing workplace discrimination, our Employment Law team can help you navigate your responsibilities under the Equality Act 2010.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
