legal definitions of discrimination

7/28/2019 Legal Definitions of Discrimination

1/11

The Equality Act:Guidance for small businesses

Understanding

legal denitions ofdiscrimination andunlawful behaviourin the Equality Act


2/11

1

This guide explains the legal denitions and types of

discrimination and harassment set out in the Equality Act 2010.The Equality Act sets out your responsibilities as an employerand how you provide services to the public. The Act meanstreating everyone fairly, with dignity and respect.Your businesss policies for recruitment, promotion andmanagement of staff should help you to stay within the law,attract talented employees and get the best out of them.

Businesses which recruit from the widest possible talent poolwill attract the best staff. Workplace policies that preventdiscrimination and harassment, and that allow your employees tobalance their work and home lives, will help you to retain workersand reduce your recruitment costs.

By being aware of the diverse needs of your customers, you couldidentify new products and markets. Your customers buyingdecisions are also inuenced by your reputation.

What is the Equality Act?The Equality Act 2010 brought together and updated a widerange of laws passed since the 1970s into one place, to makethings fairer for everyone. It sets out the personal characteristics

that are protected by law and the behaviour that is unlawful.The Act is a simplication of previous anti-discriminationlaws and is not designed to create additional paper work foremployers.

It applies to businesses of any size, so it is important tounderstand what it means.

Understanding legaldenitions of discriminationand unlawful behaviour inthe Equality Act


3/11

2

Who has duties under the Act?

All employers and service providers, whatever their size, arecovered by the Act.

As an employer, the law generally still applies to you if yourworkers are temporary, do not have written contracts or arerecruited to other positions such as trainees, apprentices or

business partners.

You are a service provider if you provide goods, facilities orservices to the general public or a section of it, free or paid for.If you are not providing services to the public, you still haveresponsibilities if you are a private club or association.

All employers have the same legal duties under the Act, butthe way that large and small employers carry out these dutiesmay be different. Small employers may have practices that aremore informal, have fewer written policies, and may be moreconstrained by nancial resources than larger employers, but noemployer is exempt from these duties because of size.

Who is protected by the Act?

Everyone in Britain is protected from unlawful behaviour by theAct. The protected characteristics under the Act are:

Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity


4/11

3

Race

Religion and belief Sex Sexual orientation.

What behaviour is unlawful?

Under the Act, it is unlawful to discriminate, harass or victimise

someone because they have or are perceived to have a protectedcharacteristic or are associated with someone who has aprotected characteristic.

Discrimination

There are several types of discrimination:

Direct discrimination

This means treating someone less favourably than someone elsebecause of a protected characteristic. In the case of age, treatingsomeone less favourably than someone else may be justied.

ExampleAn employer does not interview a job applicant because of theapplicants ethnic background

Direct discrimination by perception

This means treating one person less favourably than someone

else, because you incorrectly think they have a protectedcharacteristic.



5/11

4

Example

A bed and breakfast hotel owner falsely tells a man that thereare no rooms available because the owner believes the man isgay. Even if the man is not gay, the owner is discriminating ongrounds of perception.Indirect discrimination means putting in place, a rule or policyor way of doing things that has a worse impact on someone witha protected characteristic than someone without one, when this

cannot be objectively justied.

ExampleA hair salon owner has a policy of not employing stylists whocover their hair, believing it is important for them to exhibit theiramboyant haircuts. It is clear that this policy puts Muslim andSikh women at a particular disadvantage as well as Sikh men whocover their hair. This may be indirect discrimination unless thepolicy can be objectively justied.

ExampleA food manufacturer has a rule that beards are forbiddenfor people working on the factory oor. Unless it can beobjectively justied, this rule may be indirect religion or beliefdiscrimination against the Sikh and Muslim workers in the

factory. If the aim of the rule were to meet food hygiene or healthand safety requirements, this would be legitimate. However,the employer would need to show that the ban on beards is aproportionate means of achieving this aim. When consideringwhether the policy is justied, the Employment Tribunal islikely to examine closely the reasons given by the employer asto why he cannot full the same food hygiene or health and

safety obligations by less discriminatory means, for example byproviding a beard mask or snood.


6/11

5

Discrimination arising from disability

This means treating a disabled person unfavourably because ofsomething connected with their disability when this cannot beobjectively justied.

ExampleAn employer dismisses a worker because she has had three

months sick leave. The employer is aware that the workerhas multiple sclerosis and most of her sick leave is disability-related. The employers decision to dismiss is not because of theworkers disability itself. However, the worker has been treatedunfavourably because of something arising in consequence of herdisability (namely, the need to take a period of disability-relatedsick leave).

Direct discrimination by association

This means treating someone less favourably than anotherperson because they are associated with a person who has aprotected characteristic.

ExampleAn employer offers exible working to all staff. Requests aresupposed to be considered based on business need. A managerallows a mans request to work exibly to train for a qualicationbut does not allow another mans request to work exibly to carefor his disabled child. If the managers decision is because thechild is disabled, this is likely to be direct disabilty discriminationbecause of the mans association with his child.



7/11

6

Failing to make reasonable adjustments

To do this for disabled people is also a form of discrimination.

ExampleA disabled employee has to eat at set times to manage their bloodsugar because of diabetes. This is only possible by taking workbreaks at slightly different times from those that usually apply.This does not have a negative impact on the workers ability todo the job. In fact, it makes the job possible. It is likely to be areasonable adjustment to allow him to change the times of hisbreaks.

ExampleAn employer has a policy that designated car parking spaces areonly offered to senior managers. A worker who is not a manager,but has a mobility impairment and needs to park very close to theofce, is given a designated car parking space. This is likely to be

a reasonable adjustment to the employers car parking policy.

Harassment

Harassment is unwanted behaviour related to a protectedcharacteristic which has the purpose or effect of violatingsomeones dignity or which creates a hostile, degrading,

humiliating or offensive environment.

ExampleA builder addresses abusive and hostile remarks to a customerbecause of her race after their business relationship has ended.This would be harassment.

Employers are currently liable for harassment of their staff bypeople they do not employ.


8/11

7

Victimisation

Victimisation is treating someone unfavourably because theyhave taken some form of action relating to the Equality Act, e.g.made a complaint under the Act or supported somebody who isdoing so, such as appearing as a witness.

Example

A non-disabled worker gives evidence on behalf of a disabledcolleague at an Employment Tribunal hearing where disabilitydiscrimination is claimed. If the non-disabled worker weresubsequently refused a promotion because of that action, theywould have suffered victimisation in contravention of the Act.

Objective justication

It is possible to defend certain discrimination claims by arguingthat the treatment or practice is justied. Those claims are:

Indirect discrimination

Direct age discrimination

Discrimination arising from disability

In these claims, if an employer or service provider can show thatthe treatment or practice is a proportionate means of achieving alegitimate aim then the claim will not succeed.



9/11

8

The test is best applied in two stages:

Does the aim of the treatment or policy represent a real need,which is not discriminatory?

Are the means of achieving the aim proportionate - are thereless discriminatory ways of achieving it?

If the aim is legitimate and there are no less discriminatory waysof achieving it, then in some instances discrimination may beobjectively justied.

ExampleAn outdoor centre provides a variety of activities from gentlewalks to strenuous climbing. On safety grounds, it requires a

medical certicate of good health for all centre users. Althoughensuring health and safety is a legitimate aim, the blanket policyrequiring certicates is likely to be unjustied. This is because itcould prevent certain disabled customers from using the centreeven though they could participate in some of the activities. A lessdiscriminatory policy would be to require certicates for the morestrenuous activities only.

ExampleA building company has a policy of not employing under-18s onits more hazardous building sites. The aim behind this policy is toprotect young people from health and safety risks associated withtheir lack of experience and less developed physical strength.This aim is supported by accident statistics for younger workerson building sites and is likely to be a legitimate one. Imposing an

age threshold of 18 would probably be a proportionate means ofachieving the aim if the evidence supports this.


10/11

9

For further information:

This guide is part of the series entitled: The Equality Act:Guidance for small businesses, other titles in the series are:

Your role as an employer under the Equality Act

Your role as a service provider under the Equality Act

You can also nd more detailed information in the Codeof Practice on Employment and the Code of Practice onServices, Public Functions and Associations, available on theCommissions website.

What is the role of the Commission?

The Commission is here to help you with information aboutthe Act. We provide guidance and statutory Codes of Practiceexplaining how to comply with the law.

As well as explaining the law, we can enforce it. Our powersinclude helping individuals with their legal cases and taking legalaction ourselves against organisations that appear to have brokenthe law.

http://www.equalityhumanrights.com/uploaded_files/EqualityAct/employercode.pdfhttp://www.equalityhumanrights.com/uploaded_files/EqualityAct/servicescode.pdfhttp://www.equalityhumanrights.com/uploaded_files/EqualityAct/servicescode.pdfhttp://www.equalityhumanrights.com/uploaded_files/EqualityAct/employercode.pdf


11/11

Contacts

The Commissions publications are available to download on ourwebsite:www.equalityhumanrights.com.

If you would like to discuss the option of accessing a publicationin an alternative format please contact:[email protected].

Equality Advisory and Support Service (EASS)

The Equality Advisory Support Service has replaced theEquality and Human Rights Commission Helpline. It gives freeadvice, information and guidance to individuals on equality,discrimination and human rights issues.

Telephone: 0808 800 0082Textphone: 0808 800 0084

Opening hours:09:00 to 20:00 Monday to Friday10:00 to 14:00 Saturday

Website: www.equalityadvisoryservice.comPost: FREEPOST Equality Advisory Support Service FPN4431

Equality and Human Rights Commission

legal definitions of discrimination

Documents