Protected Characteristics: Rights and Escalating Discrimination Complaints
Under the Equality Act 2010, nine protected characteristics have been created to protect against any discrimination, harassment or victimisation, in various environments and particularly, at work. These include:
Age
Gender reassignment
Being married or in a civil partnership
Being pregnant or on maternity leave
Disability
Race including colour, nationality, ethnic or national origin
Religion or belief
Sex
Sexual orientation
What rights are attached to these characteristics?
Individuals under these categories have the right to be protected against victimisation, discrimination and harassment.
Discrimination is where someone is treated unfairly as they are a part of a ‘category of people.’ This can occur both directly and indirectly.
Indirect discrimination at work occurs when a policy or practice applies to employees, yet the policy puts some at a disadvantage over others. For example, a requirement for 15 years of experience for a sales role, or any similarly disproportionate requirement, can clearly disadvantage younger individuals seeking employment.
Direct discrimination is more evident in nature, and occurs when a person is simply treated differently according to one of the above Protected Characteristics, compared to their preferably fairly treated counterpart. For example, rejecting an experienced female due to her gender.
In short, direct discrimination is when an individual, or group of individuals, are treated in an objectively discriminatory manner. This is to be distinguished from indirect discrimination, which is generally characterised by company-wide policies, practices or regulations that unfairly impact certain groups of people. Given the potential risk of indirect discrimination, it is vital to ensure that your business guidelines are assessed to guarantee that none of your employees or potential employees and applicants are disadvantaged because of such practices.
How can an employee escalate a discrimination complaint?
According to the Equality and Human Rights Commission, an employee can take three steps to challenge workplace discrimination. From the perspective of an employer, you might expect the following:
Complain informally to you as their employer. It will be your role to then settle this and resolve any discrimination that may be taking place.
In the instance this doesn’t create a change or they are unsatisfied with any changes made, they may raise a grievance using grievance procedures your business must have in place. Templates of company grievance procedures typically include how to deal with grievances informally, formal grievances, hearings, and appeal procedures.
If this process does not solve discrimination in the workplace, your employee may then raise this to an employment tribunal.
Mediation and arbitration may also be an avenue you’ll want to explore before resorting to a tribunal. This option will prevent any dispute from going public in a tribunal, potentially tarnishing your business’ reputation. Mediation and arbitration seek to settle disputes without recourse to court proceedings. Mediation encourages parties to come to a consensus on their own, whereas arbitration involves an arbitrator resolving the dispute whilst operating as a “judge”. Lack of settlement through alternative dispute resolution (ADR) methods may effectively result in escalation to legal proceedings. For more information on ADR click here.
Services such as those of ACAS (the Advisory, Conciliation and Arbitration Service) seek to “give employees and employers free, impartial advice on workplace rights, rules and best practice.” ACAS will be able to provide you, as an employer, with advice and trained professionals, mediators and arbitrators, to sit in dispute resolution proceedings; working with the employee who has raised a dispute – they are there to help all parties involved.
- Author: Sofia Martiello
- Author: Sofia Martiello
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DISCLAIMER
This article has been written by law students for the sole purpose of providing informative insight. The information in this article is intended for educational purposes only and does not constitute legal advice, nor should the information be used for the purpose of advising clients. You should seek independent legal advice before relying on any of the information provided in this article.
Sources
“Deciding What Action to Take about Discrimination” (Citizens Advice) <https://www.citizensadvice.org.uk/law-and-courts/discrimination/taking-action-about-discrimination/before-you-take-action-about-discrimination/> accessed October 28, 2022
“Example Grievance Procedure” (Acas) <https://www.acas.org.uk/example-discipline-and-grievance-procedures/grievance-procedure-template> accessed October 28, 2022
“How to Challenge Discrimination at Work” (How to challenge discrimination at work | Equality and Human Rights Commission) <https://www.equalityhumanrights.com/en/multipage-guide/how-challenge-discrimination-work> accessed October 28, 2022
Lam BK, “Brown Kwon & Lam” (Brown Kwon & Lam LLPSeptember 24, 2021) <https://www.bkllawyers.com/blog/2021/september/what-is-the-difference-between-direct-and-indire/> accessed October 28, 2022
McPherson P, “Gender Discrimination in the Workplace Statistics 2021 (UK)” (SME LoansSeptember 27, 2021) <https://www.smeloans.co.uk/blog/gender-discrimination-in-the-workplace/> accessed October 28, 2022
“Protected Characteristics” (Protected characteristics | Equality and Human Rights CommissionJuly 6, 2021) <https://www.equalityhumanrights.com/en/equality-act/protected-characteristics> accessed October 28, 2022
Service, “Discrimination: Your Rights” (GOV.UKMarch 4, 2015) <https://www.gov.uk/discrimination-your-rights/discrimination-at-work> accessed October 28, 2022
Team, “What Are Protected Characteristics at Work?” (DavidsonMorrisJanuary 19, 2022) <https://www.davidsonmorris.com/protected-characteristics/> accessed October 28, 2022
