Unlawful Discrimination

Direct and indirect discrimination is unlawful in the employment field as is unlawful discrimination by victimisation. Discrimination at every stage of employment is forbidden.

The mains grounds on which Discrimination can occur are:

          • Gender
          • Marital status
          • Age
          • Disability
          • Race
          • Sexual Orientation
          • Religious Belief

Each of these grounds, known as ‘Protected Characteristics’ can be subject to Direct and Indirect forms of Discrimination.

In equality legislation, there’s an important distinction between direct and indirect discrimination. It’s unlawful to discriminate against people who have ‘protected characteristics’ – treating someone less favourably because of certain attributes of who they are. This is known as direct discrimination.

You don’t have to have a protected characteristic to be discriminated against. If someone thinks you have a characteristic and treats you less favourably, that’s direct discrimination by perception.

Similarly, if you’re treated less favourably because a colleague, associate, family member or friend has a protected characteristic, that would be direct discrimination by association. It’s also possible to be discriminated against for not holding a particular (or any) religion or belief.

Examples of direct discrimination include dismissing someone because of a protected characteristic, deciding not to employ them, refusing them training, denying them a promotion, or giving them adverse terms and conditions all because of a protected characteristic.

Indirect discrimination occurs when an organisation’s practices, policies or procedures have the effect of disadvantaging people who share certain protected characteristics.

Indirect discrimination may not be unlawful if an employer can show that there is an ‘objective justification’ for it. This involves demonstrating a ‘proportionate means of achieving a legitimate aim’.

The aim must be legitimate, and a real objective consideration such as the economic needs of running a business. But arguing that it’s more expensive not to discriminate is unlikely to be considered a valid justification.

It must be a proportionate measure too, meaning that the discriminatory impact should be significantly outweighed by the importance and benefits of the aim. There should also be no reasonable, less discriminatory alternative.

There’s no objective justification defence for cases of direct discrimination – except on the basis of age. For example, enhanced redundancy payments made to workers above a certain age may not be discriminatory because they reflect the extra problems older workers face when losing their jobs.

Key Contacts