Discrimination in the workplace

Discrimination is the different treatment of one employee on the basis of one of their personal characteristics. This is prohibited by law – all employees are entitled to equal treatment. If you have been treated differently because of one or more of your personal characteristics – called ‘protected characteristics’ - or if you are an employer who has been accused of discrimination, Macnairs + Wilson employment lawyers can help. We have vast experience assisting both employees and employers in all manner of contentious and non-contentious employment law matters, including workplace discrimination. We have a high level of client retention and repeat business, proudly representing generations of clients throughout Paisley, Glasgow, Renfrewshire and beyond. If you have an employment law issue and looking for expert advice and assistance, please contact us.

What are the protected characteristics?

Protected characteristics are listed in the Equality Act 2010 and are as follows:

  • age
  • disability
  • gender identity and gender reassignment
  • marriage or civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

Protection against discrimination on the basis of these characteristics extends to family members – you cannot be treated differently if your child is disabled, for instance. Your employment status is also protected – your employer cannot treat you differently because you are part-time, for instance.

What is workplace discrimination?

Generally, workplace discrimination occurs when an employee is treated differently based on a personal characteristic or trait. Different treatment includes things like allowing the observance of one religious practice and not another, or to only allow childless people to occupy a certain role or to only have a position open to those of a certain ethnicity.

This form of discrimination is known as direct discrimination, i.e. where an employee is treated differently or less favourably because they or someone they are associated with (e.g. family member or friend) have (or are perceived to have) a protected characteristic.

There are also three other types of discrimination:

  • indirect discrimination – this type of workplace discrimination is less obvious and often unintentional, covering situations where those with a protected characteristic are put at an unjustifiable disadvantage because of a workplace policy or practice. For example, placing a minimum period of experience in a job advertisement that unjustifiably discriminates against younger candidates
  • harassment – this type of workplace discrimination is where an employee’s dignity is violated or they are put in an intimidating, hostile, degrading, humiliating or offensive environment because of another person’s unwanted conduct, which is either of a sexual nature or relates to a protected characteristic. For example, bullying or threats
  • victimisation – this type of workplace discrimination is where an employee is subject to a detriment because they have alleged, given evidence of or brought proceedings (in good faith) concerning discrimination under the Equality Act

When is workplace discrimination justified?

Whether or not discrimination is potentially justifiable and therefore lawful is a difficult and complex matter that employers can only rely on in very limited circumstances, i.e. where the discriminatory act is a proportionate means of achieving a legitimate aim. This is a difficult hurdle to clear because it is assessed objectively, and although it can apply in respect of all protected characteristics in indirect discrimination cases, it can only apply in respect of age in direct discrimination cases.

How is a discrimination claim made?

If an employee believes they have been discriminated against in respect of a protected characteristic and they can’t resolve the issue with their employer, they can make a discrimination claim in an employment tribunal. A claim can be made against the co-workers they hold responsible as well as their employer. In extreme cases of harassment and bullying that don’t relate to protected characteristics, an employee may be able to commence proceedings in the courts.

In respect of discrimination claims in an employment tribunal, the employer does not have to have been involved in the alleged discriminatory act – they are automatically held accountable for their staff’s illegal acts in the course of their employment, which is known as vicarious liability. The employer will only escape liability if they can demonstrate that they took all reasonable steps to prevent discrimination in the workplace, such as having equality policies and procedures in place and having provided equality training.

What is the time limit for making a discrimination claim?

Crucially, discrimination claims are subject to strict deadlines. Employees only have three months since the last instance of discrimination to take legal action. If discrimination is continuing, the time limit starts to run at the end of the period of time when the discrimination took place. If discrimination relates to a specific incident with ongoing consequences, the time limit starts to run at the time of the specific incident.

What evidence is needed to make a discrimination claim?

An employee making a discrimination claim must support their discrimination claim with evidence. This commonly comprises a witness statement from the employee detailing their allegations of discrimination, witness statements from co-workers or other people who can confirm discrimination occurred and documentary evidence from the employer, such as statistical evidence about the workforce and letters or e-mails.

Discrimination cases are rarely clear-cut, particularly when an employer disputes the claim. Because there will be different versions and interpretations of what happened, the likelihood of success largely depends on the consistency, believability and reliability of evidence, and how the claim is presented or defended before the tribunal or court. It’s therefore vital to get specialist legal advice and assistance from specialist employment lawyers when making or defending against a discrimination claim.

Discrimination in the Workplace Lawyers Glasgow & Paisley

Employment law is a fast-moving and often complex area of law. It's vital that both employers and employees take expert, up-to-the-minute advice on legal matters relating to employment. If you are unsure of your rights, we can help. Our specialist employment lawyers have helped hundreds of people like you in Paisley, Glasgow, Renfrewshire and across Scotland. We are experts in employment law and have vast experience handling complex and sensitive discrimination cases.

If you believe you are the victim of discrimination or an employer or co-worker facing an allegation of discrimination, call us on 0141 887 5181 for our Paisley branch or 0141 551 8185 for our Glasgow branch or click here.

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