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Employment tribunals - the general legal tests that tribunals will apply to your discrimination claim

This advice applies to Wales

When a tribunal looks at a claim for discrimination, there are certain legal tests that it will apply to your claim. You need to show that you have been treated unfairly and that the unfair treatment is because of a protected characteristic - that is, because of age, disability, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation or gender reassignment.

You do not have to be an employee to be able to claim discrimination - you can also claim if you are a worker, such as a casual worker or an agency worker, or if you are a job applicant.

Have you been treated unfairly because of a protected characteristic?

Not all unfair treatment is discrimination which you can take action about through a tribunal. You can only take action if you’re treated differently because of a protected characteristic. Protected characteristics are:

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

What are the different ways in which you may have been discriminated against?

There are a number of different ways in which you may have been treated unfairly.

Direct discrimination

This is where you’re treated differently and worse than someone else because of a protected characteristic. It may be because of your own protected characteristic that you are being treated unfairly, for example, you may be being treated unfairly because you are pregnant. However, you may also be able to claim discrimination if you are being treated unfairly because you are associated with someone who has a protected characteristic.

Example

Your employer disciplines you because you have to take time off to care for your disabled child. He has not disciplined other workers who have had similar amounts of time off work. This is direct discrimination by association because of the protected characteristic of disability.

Indirect discrimination

This is when there’s a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others because of their protected characteristic and puts you at a particular disadvantage. The person applying the policy, practice or rule must be able to show there’s a good enough reason for why it's needed.

Example

There’s a clause in your contract which says you may have to travel around the UK at short notice. It’s difficult for you to do this because you’re a woman with young children. This clause therefore places you at a particular disadvantage. It also places women generally at a disadvantage, as they’re more likely than men to be caring for children.

Harassment

Harassment is unwanted behaviour which you find offensive or which makes you feel intimidated or humiliated. It can happen on its own or alongside other forms of discrimination.

Unwanted behaviour could be:

  • spoken or written words or abuse
  • offensive emails, tweets or comments on social networking sites
  • images and graffiti
  • physical gestures
  • facial expressions
  • jokes.

Harassment is unlawful if it’s because of or connected to a protected characteristic.

Example

A male worker who appears very youthful is called Sonny by his manager, frequently asked if he has started to shave and subjected to other banter implying that he is not yet an adult. Although the manager knows that the worker is in fact an adult and the banter may be genuinely funny rather than offensive, this may amount to harassment related to age.

Victimisation

Victimisation is when someone treats you badly or subjects you to a detriment because you complain about discrimination or help someone who has been the victim of discrimination.

Detriment means you’ve suffered a disadvantage of some sort or been put in a worse position than you were before.

It’s unlawful for someone to treat you badly because you take action about unlawful discrimination or because they think you have done or may take action about unlawful discrimination.

Example

You make a complaint of sex discrimination against your employer. As a result, you’re denied a promotion. This is victimisation and you can take a discrimination claim against your employer. You’ve suffered a detriment as you didn’t get promoted.

Failure to make reasonable adjustments

If you’re disabled, you may find it more difficult to find and stay in work than other people. The Equality Act 2010 says that employers must take steps to make it easier for people with disabilities to be able to work. This is called the duty to make reasonable adjustments.

Examples of reasonable adjustments your employer could make include:

  • making adjustments to the premises such as installing a ramp or handrails
  • allocating some of your duties to other workers if you cannot carry them out because of your disability
  • transferring you to another job if it is more suitable for you and there is such a vacancy
  • altering your hours of work
  • moving you to a different workplace or allowing you to work from home
  • buying or modifying equipment so that you can do your job.

Discrimination arising from your disability

Discrimination arising from disability is when you have a disability and you’re treated unfairly because of something connected to your disability rather than the disability itself. You might be treated worse than other workers because, for example, you need more regular rest breaks or toilet breaks than other workers, or you have difficulties in using public transport, or need regular hospital appointments, or need specialist equipment because of your disability.

Unlike direct discrimination, there’s no need to compare your situation with that of someone else. All you need to show is that you were treated unfavourably because of something to do with your disability.

Example

You’re given a new shift pattern at work which includes late night shifts. You have kidney failure, for which you have nightly dialysis. You’re therefore unable to work late at night as a consequence of your disability. This would be unfavourable treatment because of something connected to your disability. Here it’s the need to have dialysis at night.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

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