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Check how you’ve been discriminated against

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If you’ve been treated unfairly or harassed, you should check if what happened is unlawful discrimination. 

To work out if you’ve experienced unlawful discrimination you’ll need to follow 3 steps:

  1. Check if you were treated unfairly because of something about you like your age or race - these are known as ‘protected characteristics’

  2. Check if the person or organisation who treated you unfairly is legally responsible for discrimination

  3. Check if what happened counts as a type of unlawful discrimination

This advice explains how to follow step 3. If you haven’t done steps 1 and 2, you should check how to follow the first 2 steps.

The Equality Act describes what types of behaviour count as unlawful discrimination.

You’ll need to show that what happened meets the definition of one or more types of unlawful discrimination. 

If what happened isn’t one of the types of unlawful discrimination, you might be able to take action using different laws.

Check the types of discrimination

The types of unlawful discrimination covered by the Equality Act are:

  • direct discrimination - this is when someone treats you worse than someone else because of a protected characteristic

  • indirect discrimination - this is when a policy or rule has a worse effect on you because of your protected characteristic

  • harassment - this includes bullying or making jokes about you that are related to a protected characteristic

  • victimisation - this is when you’re treated badly for challenging unlawful discrimination

If you’re disabled or pregnant, there are also extra types of discrimination you’re protected from.

To work out what type of discrimination you’ve experienced, you need to think about what happened and what made it unfair. It might be difficult to think about what happened to you. It might help to go through this advice with someone close to you who knows about what happened.

Direct discrimination

If someone treats you worse than someone else because of a protected characteristic, it’s called direct discrimination. For example, you might have experienced direct discrimination if:

  • you’re black and you were punished for making a mistake at work when a white person wasn’t

  • a landlord refuses to rent you a property when they found out you’re gay 

  • you’re over 60 and you were given worse service than a younger person was

If you want to take action about direct discrimination, you’ll need to show you were treated worse than someone who was in the same situation as you but who didn’t have your protected characteristic. The Equality Act calls being treated worse being treated ‘less favourably’.

You’ll also need to show why you think you were treated less favourably because of a protected characteristic. 

Even if a protected characteristic was one of many reasons why you were treated less favourably, it’s still direct discrimination.

Example 

Suri and her colleague Ben both interviewed for an internal promotion - Suri is Sikh and Ben is non-religious. Suri and Ben joined the company at the same time and have very similar skills and experience, however Ben was given the promotion and Suri wasn’t. Suri suspects this is because of her religion.

Even if Suri didn’t perform as well as Ben in her interview, she can still argue this was direct discrimination if she can prove that her religion was also a reason why she wasn’t promoted - for example, if she can prove that the hiring manager made negative comments about her religion in her interview.

Check if you were treated worse than someone who was in the same situation

If you think you’ve experienced direct discrimination, you need to check you were treated worse than someone in the same situation who didn’t have your protected characteristic. The Equality Act calls this person a ‘comparator’.

Your comparator should be someone who was in the exact same situation as you - for example, a colleague who made the exact same mistake as you at work but was treated differently. This is called an ‘actual comparator’.

If you can’t find anyone who was in the exact same situation, your comparator could be someone who was in a similar situation - this is called a ‘hypothetical comparator’. You can use a hypothetical comparator to show you were treated worse than someone would have been treated if they were in the exact same situation as you.

Example

Jay is transgender and works in a cafe. One day Jay makes a mistake on the till which results in a small financial loss to their employer. Because of this mistake, Jay is fired. Jay thinks this is direct discrimination because they’re transgender. 

This situation has never happened before so there’s no actual person Jay can compare themself with. But 6 months earlier, Jay’s employer gave a written warning to another worker for taking home some food without permission.

Because this was a similar situation, Jay can use the treatment of this worker to show that their employer would not have dismissed someone who is not transgender for making a till error.

If you were treated worse because of age

Sometimes businesses and service providers are allowed to treat people differently because of their age. This includes:

  • having a minimum age or years of experience for certain job opportunities - for example, bar workers needing to be over 21

  • having a compulsory retirement age - for example, fire service officers having to retire at 65

  • providing financial services differently - for example, not offering credit cards to people who are retired

  • having insurance premiums based on age - for example, higher car insurance premiums for older and younger people

A business can only treat you differently because of your age if they have a legitimate reason - the Equality Act calls this an ‘objective justification’. You can check if a business has an objective justification for treating you differently.

If you were treated worse because of disability 

You're also protected from extra types of disability discrimination that might cover what happened better. You should check the extra types of disability discrimination in this advice.

Indirect discrimination

If a rule or policy applies to everyone but affects you worse because you have a protected characteristic, this is called indirect discrimination. 

For example, you might have experienced indirect discrimination if:

  • your manager says everyone has to work between 9am and 5pm - which might affect women with childcare responsibilities worse

  • your bank says people can only get an account if they have a permanent address - which might affect Irish Travellers or migrant workers worse

  • a housing association refuses to give properties to people who claim benefits - which might affect disabled people worse

Indirect discrimination might not be obvious because it usually won’t be targeted at you personally.

To work out if you’ve experienced indirect discrimination you’ll need to:

  • check what rule is causing the discrimination

  • check the rule affects you and others with your protected characteristic in the same way

Check what rule is causing the discrimination 

You’ll need to find the exact rule or way of doing things that discriminates against you. The rule doesn’t have to be written down anywhere. ​​It also doesn’t matter if you agreed to the rule by signing a contract. For example, a rule or way of doing things could be:

  • a landlord's rule that tenants can’t have pets

  • an office practice of going to the pub on a Friday

  • a term in your contract that says you have to wear a certain uniform

The rule must apply to people with and without your protected characteristic. If the rule only applies to people with your protected characteristic it might be direct discrimination.    

Check the rule affects you and others with your protected characteristic in the same way

You need to check the rule affects other people with your protected characteristic in the same way as you - or that it would affect others in the same way. For example, if your housing association has a policy that discriminates against you because of your race, you’ll need to show that the policy discriminates against other tenants of the same race as you in the same way. 

If there aren’t other tenants that share your race, you’ll need to show that any tenants of the same race would be affected in the same way.

Harassment 

You might have experienced harassment under the Equality Act if either:

  • someone behaves in an offensive way because of a protected characteristic - or they try to behave in an offensive way

  • someone makes you feel scared or humiliated because of a protected characteristic - or they make you feel that way

Harassment can include things like verbal abuse, bullying, jokes, making faces and posting comments on social media. 

Harassment also includes sexual harassment - for example, commenting on your clothes or appearance, sending you messages with sexual content or making sexual comments - even if they’re not about you.

It doesn’t matter if you didn’t stop the person’s behaviour. If you didn’t want the behaviour to happen, it’s still harassment.

It is also unlawful harassment if someone treats you worse because of your reaction to any of the following:

  • sexist harassment

  • transphobic harassment

  • sexual harassment

Example

Cara's landlord tries to flirt with her and kiss her, which makes her feel very uncomfortable and embarrassed. This is sexual harassment whether Cara told her landlord to stop or not. 

After this happens, Cara starts to avoid her landlord. Because of Cara’s reaction, her landlord stops doing repairs on her house. This is also harassment.

Check what type of harassment it is

There are different types of harassment that are covered by different laws. You need to work out what type of harassment you’ve experienced so you know what actions you can take.

Harassment is only a type of discrimination under the Equality Act if:

  • the behaviour was because of a protected characteristic

  • the person who harassed you is legally responsible for discrimination

  • you didn’t want the behaviour to happen - even if you didn’t stop it

If you were harassed by a member of the public, your neighbour or a family member, this usually isn’t covered by the Equality Act. 

If you’ve been harassed but it’s not discrimination under the Equality Act, you might be able to take a different type of action. You can:

Victimisation

If you were treated badly because you challenged discrimination or you helped someone else challenge discrimination, this is called ‘victimisation’.

The actions involved in challenging discrimination are called ‘protected acts’. It is unlawful to treat you unfairly because of a protected act. 

Protected acts include:

  • complaining to an employer, landlord or business about discrimination

  • making a formal discrimination claim

  • giving evidence to support a colleague’s discrimination complaint

  • being a witness in a discrimination court case

Example

Claire complained to her son’s school because some staff members were treating her son unfairly because he’s autistic. 

Claire met with the head teacher and the problem was resolved. A week later Claire was told she can’t help out at school any more even though she’d been helping out for a long time. 

Claire thinks this decision was made because she complained about her son’s treatment. This could be victimisation.

If someone treats you unfairly because they think you might complain about discrimination, this is also victimisation.

If you complained about something that wasn’t unlawful discrimination

You’re still protected from victimisation if you honestly thought it was unlawful discrimination.

If you lied about discrimination or if you gave false information, this doesn’t count as victimisation.

If you're disabled 

If you’re disabled under the Equality Act, you’re protected from all the main types of discrimination - direct discrimination, indirect discrimination, harassment and victimisation. You can check if you’re disabled under the Equality Act.

It also protects you from 2 extra types of discrimination: 

  • discrimination arising from disability - this is when you’re treated badly because of something that happens as a result of your disability 

  • failure to make reasonable adjustments - this is when an employer, business or organisation doesn’t make the changes needed to help you work or access a service or place

These extra types of disability discrimination might cover your situation better than direct or indirect discrimination. If you’re not sure what type is most relevant to you, an adviser can help you work this out - talk to an adviser.

Discrimination arising from disability

You might have experienced this type of discrimination if you were treated badly because of something that happens as a result of your disability. 

For example, it might be discrimination arising from disability if:

  • someone is turned down for a promotion because they regularly have to take time off for medical appointments

  • someone is refused accommodation because they have an assistance dog

  • someone is kicked out of a pub because of how their medication affects their behaviour 

This is different from direct disability discrimination, which is about being treated worse than someone else just because you’re disabled.

Example

Gail has Tourette’s syndrome, which means sometimes she can shout out. 

Gail goes to a pub with some friends. She starts to shout out in the pub and one of the bar staff comes over and asks her to leave. Gail explains she has Tourette’s syndrome and this condition causes her to shout out.

The staff member says it doesn’t matter that Gail has Tourette’s syndrome, they can’t have disruptive behaviour in the pub - whether someone is disabled or not. The staff member makes Gail leave the pub.

This is likely to be discrimination arising from disability. This is because Gail was treated badly because of an effect of her disability - her shouting out - not simply because she was a person with Tourette’s syndrome.

If other non-disabled people had also been shouting out but the pub staff only made Gail leave, this would be direct disability discrimination. This is because she’s being treated worse than others who don’t have her disability.

You might have experienced discrimination arising from disability if you were treated badly because of:

  • the effects of a health condition - for example, extreme tiredness or seizures

  • how your disability affects your behaviour  - for example, how it affects your speech, movement or the way you socialise in large groups

  • your need to attend regular medical appointments

  • your need for assistive technology - for example, ear defenders, standing desks or screen readers

  • your need for regular rest breaks or toilet breaks

The person or organisation might be able to legally justify treating you badly - if they can legally justify their behaviour, it won’t be unlawful discrimination.

If you want to take action about discrimination arising from disability, you should check how people and organisations might be able to justify discrimination.

If you were treated badly by an employer or housing provider

It’s only unlawful discrimination if an employer, landlord or other housing provider either:

  • knew you were disabled when they treated you badly - for example, if you gave details about being disabled in your tenancy application, job application or HR records 

  • reasonably should’ve known you were disabled when they treated you badly - for example, if there were lots of signs you were struggling at work, like you were performing less well, regularly missing deadlines or regularly getting upset

Failure to make reasonable adjustments

Employers, businesses and organisations have to change certain things if they affect you worse than people who aren’t disabled. For example, they might have to change:

  • a rule or way of doing things - for example, the hours you have to work, an application process or a term in your tenancy 

  • a physical feature of a building - for example, steps, toilets or lighting

  • not having extra equipment or help - for example, induction loops for hearing aids or screen readers

Failure to make these changes can be a type of unlawful discrimination. 

If someone hasn’t made a change you need, you can check if it was an unlawful failure to make reasonable adjustments.

If you’re pregnant or you recently gave birth

The Equality Act protects you from all the main types of discrimination - direct discrimination, indirect discrimination, harassment and victimisation. 

You might also be protected from an extra type of discrimination called ‘pregnancy and maternity discrimination’.

If you were treated unfairly because you’re pregnant, breastfeeding or you recently gave birth, check if you’ve experienced pregnancy and maternity discrimination.

If you think you’ve experienced unlawful discrimination

There are things you can do if you think you’ve experienced a type of unlawful discrimination under the Equality Act. 

Discrimination isn’t a criminal offence - this means you can’t ask the police to investigate it. You’ll need to take action yourself.

You should follow these steps:

  1. Complain to the person or organisation - for example, by following their formal complaints procedure

  2. Check if you can get help to solve the problem - for example, through mediation or an ombudsman

  3. Take the person or organisation to court - if you can’t solve the problem without going to court

Before you take action about discrimination, you need to decide what outcome you want and the best way to achieve it. Check how to take action about discrimination.

There are time limits for taking legal action about discrimination. If you need to go to court, it’s important to act quickly. The time limits can be as little as 3 months from the date you experienced discrimination. Check what the time limits are.

If you don’t think you’ve experienced unlawful discrimination

You still might be able to take action another way - for example, using different laws. You can:

If you’re not sure if you’ve experienced a type of discrimination

If you need more help understanding if you’ve experienced discrimination under the Equality Act, you can talk to an adviser.

You can also check how to contact the Equality Advisory Support Service.

An adviser won’t be able to tell you if you’ve definitely experienced discrimination - but they can help you work out if you meet the definitions in the Equality Act.

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