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Step 3: check what type of discrimination it is

This advice applies to Wales

To take action, you need to work out the type of discrimination you've experienced.

You should already know which protected characteristic the discrimination is about. To work out what type it is you need to think about what’s happening to you that’s unfair.

Look at the situations described on this page and make a note of any type of discrimination that applies to you.

If more than one applies to you, note them all down. This helps you build a stronger case if you take legal action.

If a rule applies to everyone but has a worse effect on you - indirect discrimination

If your employer has a policy, rule, criteria or way of doing things that applies to everyone but puts you and people with your protected characteristic at a 'particular disadvantage' compared with others, it’s called indirect discrimination.

For example, it might be indirect discrimination if:

  • your employer has a rule that workers have to speak English at all times in the office, but this is a disadvantage for you because you’re Polish
  • your office has a policy that everyone has to work full time, but this is a disadvantage for you because you’re disabled
  • your employer says you have to work on Saturdays but it’s against your religion

The person discriminating against you might be able to justify it - you’ll have to check before you take any action.

Indirect discrimination can be difficult to spot because it’s not personally targeted at you. A rule might seem fair because it applies to everyone, but if it affects people with a protected characteristic more, it could be indirect discrimination.

To prove indirect discrimination you’ll need to show:

  • there was actually a rule or way of doing things (called a ‘provision, criterion or practice’ in the law)
  • the provision, criterion or practice puts you at a particular disadvantage compared to others without your protected characteristic
  • it also puts or would put other people with your protected characteristic at the same disadvantage

Identify the rule or way of doing things

The rule doesn’t have to be written down anywhere for it to be indirect discrimination. It also doesn’t matter if you agreed to the rule by signing a contract.  

You need to be able to say exactly what the rule is that discriminates against you. A rule or way of doing things could be:

  • a term in your contract that says all employees have to wear a company uniform
  • your office having a policy that all holiday requests have to be in writing
  • your manager saying everyone in the team has to be in the office on Fridays

The rule or way of doing things has to either:

  • actually apply to people with and without your protected characteristic
  • be something that could apply to people with and without your protected characteristic

The rule or way of doing things might only affect people with your protected characteristic - for example, if everyone in your office is a woman. You’ll need to show that it could apply to other people in theory - for example, if a man joined the office the rule or way of doing things would apply to them too.

Showing how you and people with your protected characteristic are affected

You might have to give evidence of the particular disadvantage to you, if it’s not obvious. For example, if you can’t work at certain times for religious reasons you might need to show evidence that it’s important in your religion.

You’ll also have to show how other people with your protected characteristic would be affected. For example, you might be able to show there are 5 people in your company with your religion, and 4 of them also have problems working the shifts they’re asked to.

Think about whether they can justify the discrimination

It won’t be against the law if the employer can show they have a good enough reason for it. 

To have a good reason, they have to be able to show that applying the provision, criterion or practice is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this.

Firstly, they have to show the aim is legitimate. A legitimate aim could be:

  • the health and safety of other staff or customers
  • making sure the business can run properly - for example, making sure other employees can take holiday

Secondly, your employer’s behaviour has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

Your argument will be stronger if you can think of a way of meeting the legitimate aim that discriminates against you less.

If you’re not sure whether the behaviour is proportionate you should think about:

  • how many people with your protected characteristic would be affected - a high number makes it harder to justify
  • how badly people are affected - for example, dismissing someone will be harder to justify than causing them a small inconvenience

If you’re not sure if the discrimination is justified, get help from an adviser.

Example

Hannah works as a property manager for a letting agent. She’s recently had a baby and wants to return to work. Hannah asks whether she can come back to work flexible hours, depending on her childcare commitments.

The letting agent tells Hannah that she can’t work flexibly because they have a rule that says property managers have to work full time.

Hannah could argue that this is indirect discrimination against women. Her employer’s rule applies to men and women, but it's likely to affect women more because they’re more likely than men to have childcare commitments.

The letting agent might be able to show that refusing Hannah’s request is a proportionate means of achieving a legitimate aim. Their legitimate aim is that they need to meet the needs of their customers.

The letting agent might say they don’t have enough property managers to work out a flexible shift rota and they can’t let Hannah job share because customers don't like having to deal with more than one person. This might mean it’s proportionate to make Hannah work full time.

Hannah might argue it would be easy to find a job share partner and show how customers wouldn’t be affected. She could also argue that making her work full time isn’t proportionate because it means she has to give up her job - the impact on her is greater than the impact on her employer.

Indirect discrimination is covered in section 19 of the Equality Act 2010 and in the EHRC Code of Practice on Employment, chapter 4.

If your employer treated you worse than someone else - direct discrimination

If someone treats you worse than others because of a protected characteristic it’s called direct discrimination. The legal term for being treated worse is being treated ‘less favourably’.

For example you might:

  • not be allowed to work from home when someone else is
  • be punished for making a mistake when someone else wasn’t

If you’re being treated unfairly because of someone else’s protected characteristic

You might be discriminated against because of someone you're associated with. For example, you could be treated unfairly because your partner is a particular race. This is called ‘direct discrimination by association’.

If someone thinks you’ve got a protected characteristic, but you don’t

You might be treated unfairly because someone thinks you have a protected characteristic - even if you haven’t. For example someone might treat you unfairly if they think you’re gay, but you’re actually straight - this is called ‘direct discrimination by perception’.

Showing you were treated less favourably

You’ll need to show you were treated less favourably than someone else who doesn’t have your protected characteristic.

You might know that someone was in the exact same position as you but you were treated less favourably. The law calls this person an ‘actual comparator’.

You might not need a comparator if the discrimination is obvious - like if your employer says you can’t work on reception because you’re disabled.

Example

Mason works as a security guard. He recently told his manager he’s gay, and he’s split up with his boyfriend. A few days later, he accidentally left some keys in the wrong place.

Mason’s manager called him in for a meeting. He told Mason that his personal life was clearly affecting his work and that he was going to be moved to a different role with less responsibility.

Mason knows that other employees have also lost sets of keys in his workplace before. His manager didn’t discipline them or change their duties. He could use them as an ‘actual comparator’.

Mason thinks he was treated worse than the other people because he's gay. This would be direct discrimination because of sexual orientation.

If you can’t find anybody who’s been in the same situation, you’ll need to imagine somebody without your protected characteristic in the same situation. The law calls this person a ‘hypothetical comparator’.

You’ll need to show the way you were treated was worse than the way they would have been treated. You could do this by using a real example where someone’s been in a different but similar situation.

Example

Ameena works in a carpet shop and she sold an out-of-stock carpet by mistake. Her manager had to pay extra to order the carpet from another shop.

Her manager dismissed her because of the mistake. Ameena thought it might be discrimination as she was the only Asian employee. She knows that four months ago Anna, a white British employee, made a similar mistake and only got a written warning.

Ameena could argue that Anna is a comparator, because she made a similar mistake and is of a different race.

However, Ameena’s manager took her length of service into account when deciding her punishment. Ameena had only been working there for 6 months, but Anna had 20 years’ service.

Ameena’s comparator needs to be someone in the same ‘material circumstances’. This means someone with the same length of service who made the same mistake but who is not Asian. Anna’s situation might not be similar enough for her to be a comparator, so Ameena needs to use a hypothetical comparator.

Ameena can say that because Anna wasn’t dismissed, it’s likely that a hypothetical comparator wouldn’t have been dismissed either. 

If you need more information about who could be a hypothetical comparator, you can read the EHRC Code of Practice on Employment, chapter 3.

Think about the reason you were treated less favourably

You'll have to think about whether your employer treated you less favourably because of the protected characteristic. This is called 'causation’ in the law.

They might say they have another reason for how they treated you apart from your protected characteristic. For example they might dismiss you because you haven’t met your performance targets.

If you take action against them in tribunal, you’ll have to show why you think your protected characteristic was the reason you were treated that way. You might have evidence to show this, for example you might show other people with your protected characteristic were treated the same way.

If the tribunal accepts your evidence that there might have been discrimination, the other side will need to prove that the way they treated you wasn’t because of the protected characteristic.. The rules on this are in section 136 of the Equality Act 2010.

If your employer is treating you less favourably for more than one reason, it’s still discrimination as long as your protected characteristic was one of the reasons. For example, your manager might treat you worse partly because they’re prejudiced against your religion and partly because you’re not hitting your performance targets. This would still be discrimination.

It’s still discrimination if someone didn’t mean to treat you worse. For example, your manager might take away some of your duties because they think it will make your life easier, but you don’t want them to.

Your employer can’t usually argue that direct discrimination is justified, even if they think they have a good reason for it. There are some exceptions to this, for example:

  • giving extra help to a disabled person
  • maternity rights for a women
  • some kinds of direct age discrimination

Check if they can justify discrimination because of your age

It won’t be against the law if the employer can show they have a good enough reason for it.

To have a good reason, they have to be able to show that treating you less favourably is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this

Firstly, they have to show the aim is legitimate, a legitimate aim could be:

  • planning ahead - for example, choosing not to hire an older person for a job that requires years of training
  • dignity - for example having a retirement age for a very physical role, to avoid having to dismiss an older worker when their performance starts to drop
  • health and safety - for example not allowing workers under 18 to use dangerous machinery

Secondly, your employer’s behaviour has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

Your argument will be stronger if you can think of a way of meeting the legitimate aim that discriminates against you less.

Direct discrimination is covered in section 13 of the Equality Act 2010 and in the EHRC Code of Practice on Employment, chapter 3.

If you’re harassed or bullied

It could be harassment if someone behaves in a way that:

  • offends you
  • makes you feel uncomfortable or distressed
  • intimidates you

This could include things like:

  • abusive comments or jokes
  • insulting gestures or facial expressions
  • offensive comments on social media

Once you’ve checked if any other types of discrimination apply to you, you can check if your problem is harassment.

Harassment is covered in section 26 of the Equality Act 2010, and in the EHRC Code of Practice on Employment, chapter 7.

If your employer didn’t make changes to help with your disability (reasonable adjustments)

If you’re disabled, your employer has a duty to make certain changes to help you work there. This is called the ‘duty to make reasonable adjustments’.

You can ask for changes before you start the job or while you’re working there. If your employer refuses to make changes you need, it might count as a type of discrimination called failure to make reasonable adjustments.

You should check what changes you can ask your employer to make.

The duty to make reasonable adjustments is covered in sections 21 and 36 of the Equality Act 2010, and in the EHRC Code of Practice on Employment, chapter 6.

If the discrimination is because of something connected to your disability

It could be discrimination arising from a disability. This is different from direct discrimination, where you’re being treated unfairly because of your disability itself.

You don’t need to prove that you were treated worse than someone else. You just need to show you were treated unfavourably because of something connected to your disability. The law calls this being treated ‘unfavourably because of something arising in consequence of disability’.

It won’t be discrimination if they didn’t know about your disability.

It’s could still be discrimination if you’d reasonably expect they should have known about your disability. For example, if you’ve been crying a lot at work, performing less well and taking sick days, your employer might reasonably be expected to realise that you might have a disability. They don't actually need to know what condition you have. 

It’s also still discrimination if they knew you were disabled but didn’t know exactly how your disability affects you.

Example

Pearce works as a teaching assistant in a school. He has multiple sclerosis which means he often has to take sick days and time off for medical appointments.

After Pearce was off sick for a long time in the middle of the school term, his manager told him he was being selected for redundancy because he was taking too much time off.

Pearce isn’t selected for redundancy because he’s disabled, but his time off was caused by his disability. This could be discrimination arising from a disability.

There might be more than one reason for the problem - some that are connected to your disability and some that aren’t. If your disability was a factor, it can still be discrimination arising from a disability.

For example, you might be given a warning partly because you were late for work because of your disability and partly because you made a mistake that wasn’t related to your disability.

Think about whether they can justify the discrimination

If your employer can show they have a good enough reason for it.  the discrimination arising from a disability won’t be against the law.

To have a good reason, they have to be able to show that the way you were treated is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this.

Firstly, they have to show the aim is legitimate. A legitimate aim could be:

  • the health and safety of other staff or customers
  • making sure the business can run properly

Secondly, your employer’s behaviour has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

If your employer hasn’t made changes you need for your disability

It might be a type of discrimination called ‘failure to make reasonable adjustments’.

If it is, they probably won’t be able to justify other types of discrimination against you. Check what reasonable adjustments your employer has to make.

Your argument will be stronger if you can think how they could meet the legitimate aim in a way that discriminates against you less.

Example

Beth’s employer introduced a new IT system 9 months ago. Beth has autism which means she finds it hard to adapt to change and she needs clear instructions about tasks. Her employer knows about her autism and its effects.

Beth’s support worker made suggestions to help her get used to the new system including giving her individual training, arranging for a mentor to support her and allowing her longer than other staff to get used to the system. Beth’s employer followed the support worker’s suggestions.

Last month Beth was given a warning that she had a month to improve. At the end of the month, Beth was still unable to reach the standard her employer wanted and she was dismissed.

Beth thinks the dismissal was discrimination arising from disability, because her performance difficulties are connected to her disability.

Beth’s employer is likely to argue that their actions are a proportionate means of achieving a legitimate aim. Their ‘legitimate aim’ might be that their business needs to be productive.

Their actions might be ‘proportionate’ if they have taken all reasonable steps to support Beth to achieve an acceptable performance level. This includes meeting their duty to make reasonable adjustments.

Beth might be able to argue that there were more proportionate ways of achieving their aim than dismissing her. For example they could have changed her duties so she could contribute to the business without needing to use the IT system.

If you’re not sure whether they can justify their actions, get help from an adviser.

Discrimination arising from a disability is covered in section 15 of the Equality Act 2010, and in the EHRC Code of Practice on Employment, chapter 5.

If you’re being treated unfairly because you challenged discrimination before - victimisation

It could be victimisation. Complaining about your unfair treatment or helping someone else complain are known in the law as ‘protected acts’.

A protected act could be:

  • complaining to your employer about discrimination
  • giving evidence to support your colleague's discrimination complaint
  • going to an employment tribunal to make a discrimination claim

It’s victimisation if someone treats you unfairly because you complained or helped someone else complain. It’s also against the law for them to treat you unfairly because they think you’ve complained, or might complain in future.

You’re not protected against victimisation if you:

  • make false accusations or give false information and
  • do so in bad faith

For example, if you deliberately exaggerated how badly you were harassed to get a higher compensation settlement, it wouldn’t be victimisation if you were treated unfairly because of that.

You would be protected if you made a complaint because you honestly believed it was discrimination but it turned out not to be.

Example

Terry helped his colleague June by being a witness when June made a race discrimination claim against their company. Being a witness is a ‘protected act’ in the law.

Terry’s manager has now told him he’s going to be made redundant. Terry thinks it’s because he helped June with her discrimination claim.

This could be victimisation and could help Terry to challenge his redundancy at an employment tribunal. The judge would decide if it was victimisation or if there was another reason he was being made redundant, for example because of his performance.

Victimisation is covered in section 27 of the Equality Act 2010, and in the EHRC Code of Practice on Employment, chapter 9.

If you’re discriminated against because of your pregnancy or maternity

If you’re discriminated against because of your pregnancy or maternity you need to take action using section 18 of the Equality Act 2010.

You don’t need to prove that you were treated worse than someone else to claim pregnancy and maternity discrimination - you just need to show you’ve been treated unfavourably.

Unfavourable treatment could be:

  • not allowing you time off for medical appointments
  • not letting you take maternity leave
  • dismissing you because of a pregnancy-related illness
  • giving you less responsibility while you’re pregnant
  • losing a pay rise or bonus you would have got if you were at work
  • not telling you about job opportunities while you’re on maternity leave

If your employer won’t agree to allow you to work part time after your maternity leave it’s probably not maternity discrimination. However, it might be indirect sex discrimination.

If you’re not sure whether your employer is putting you at a disadvantage you can get help from an adviser.

Pregnancy and maternity discrimination is covered in section 18 of the Equality Act 2010, and in the EHRC Code of Practice on Employment, chapter 8.

If you’re worried about your health and safety

Your employer shouldn’t make you do work that puts you or your unborn baby at risk, for example:

  • heavy lifting
  • night shifts
  • too much travel
  • working in high temperatures

Your employer should do a risk assessment for your pregnancy. If they won't, you might be able to take action for pregnancy discrimination. You can also report it to the Health and Safety Executive.

If you were treated unfairly before you were pregnant, or after your maternity leave finished

You won’t be able to take action using pregnancy and maternity as your protected characteristic. You could still be able to take action about discrimination because of your sex, which is also a protected characteristic.

It’s still maternity discrimination if your employer makes a decision during your maternity leave that only affects you after you’re back at work.

If you’re going through a gender reassignment

If you’re refused time off to go through a gender reassignment, this is a separate form of discrimination in the law - gender reassignment discrimination.

This type of discrimination is easier to claim than direct discrimination because you don’t need to prove that you were treated worse than someone else. You just need to show that your employer would have let you take the time off if you were sick.

Example

Daryl was born female but has been living as a man for 5 years. He’s decided to go through a full gender reassignment. He has to go to the Gender Identity Clinic every month for counselling sessions, and he’ll need surgery that will keep him off work for 2 weeks later in the year.

Daryl tells his employer about the time off he’s going to need. His manager tells him that he won’t be paid for his time off because ‘he’s not ill’.

If Daryl had been ill he would have been paid for his time off, so this would be gender reassignment discrimination.

Gender reassignment discrimination is covered in section 16 of the Equality Act 2010, and in the EHRC Code of Practice on Employment, chapter 9.

Next steps

Once you’ve identified the types of discrimination you’re facing, you’ll need to decide what action to take.

If your unfair treatment doesn’t count as discrimination

If you’re worried about losing your job you can find out more about your notice period during dismissal. You could also check if you have a claim for constructive dismissal.

If your problem is about your working hours you can find out more about asking for flexible working.

If your problem is about something else you can:

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