Discrimination occurs when someone is treated unfairly because of a particular protected characteristic (age, race or nationality, sex, gender or gender reassignment, sexuality, disability, pregnancy, religion or belief, or marital or civil partnership status). For example, in the recent case of Parmar v Leicester City Council (4 June 2024), the court found that the claimant, an employee of Indian origin, had been discriminated against on the basis of her race when she was formally investigated for a disciplinary issue and temporarily transferred to another role, while employees of other races who had been in similar circumstances were only informally investigated.
Discrimination can be direct (eg prohibiting female staff from attending a work event) or indirect (eg hosting a work event in a location which is inaccessible to disabled members of staff).
Discrimination is prohibited by law. Therefore, you must ensure that you do not discriminate as an employer and business, or you risk facing costly discrimination claims.
How to avoid discriminating against staff
While hiring staff, you must be careful to ensure your job advert, application and interview process, decision-making process, and contracts offered to new staff are not discriminatory.
Job adverts
When advertising a role, avoid discrimination based on protected characteristics to prevent legal issues.
You should:
- Use inclusive language and avoid terms that imply gender, age or disability preferences (eg ‘dinner lady’ or ‘young, energetic candidate’).
- Not specify irrelevant traits like nationality when language skills are what is really required.
- Avoid unnecessary specifications of working hours or patterns that could discriminate, especially against women who are more likely to need flexible schedules due to childcare responsibilities.
- Ensure tasks listed are essential to the role. For example, if Sunday working is rarely required, do not overstate its necessity as it may deter applicants from certain religions.
- Specify characteristics only when justified by a legitimate occupational requirement (eg a female attendant for women’s changing rooms or an actor of a particular age range for a specific role).
You may encourage applications from under-represented groups as part of positive action, provided you do not exclude other candidates.
Application and interview process
During the application and interview process, ensure that you do not discriminate against disabled or pregnant applicants by providing reasonable adjustments. For example:
- A dyslexic applicant may require more time to complete a written assessment.
- A blind or partially sighted applicant may require an opportunity to take an assessment orally.
- A pregnant applicant may require more frequent breaks during an assessment.
Decision-making
You can use positive discrimination to help to boost diversity in your business (ie favouring somebody who has a protected characteristic over somebody who does not). However, you should only do this if the applicants are equally qualified for a role, or else you may be discriminating against the person who does not have a protected characteristic.
Contracts and during employment
You must make sure that you don’t give employees less favourable terms because they have a protected characteristic. To avoid this:
- Treat all comparable employees equally. For example, you must not pay women less than men where they are in comparable positions (see Staff pay for the rules on this).
- Host (regular) work socials on a day that does not discriminate against a particular group of people (eg those for whom the sabbath is a Friday).
- Be careful not to discriminate indirectly by offering different terms to different groups of employees that disadvantage one group more than another. For example, if you have working hours that are particularly difficult for single parents to comply with, these are likely to be discriminatory against women, as the majority of single parents are women.
- Ensure that you make reasonable adjustments for disabled staff. What is reasonable depends on the size of your business and the circumstances of the individual. Examples of reasonable adjustments vary widely, ranging from a new chair for a staff member with back pain to reduced performance targets or the provision of a mentor to provide support with work tasks.
Note that there is a limited legal exception which permits you to discriminate indirectly if you can justify it as an appropriate and necessary way of achieving a legitimate aim. For example, if a business needs to make some redundancies and they do much of their business with a supplier in Italy, they may decide to retain a staff member who speaks Italian over other staff members. This may indirectly discriminate against staff members who are not Italian, but can be permitted if there is a genuine business need that can’t be resolved with a less discriminatory approach.
How to respond to a complaint of discrimination
Discrimination is a very serious allegation, and you should treat the complaint with an appropriate degree of respect and caution. A staff member who feels you are responsible for discrimination against them has the right to bring a claim for compensation against you in an employment tribunal. However, a fair and rigorously applied grievance procedure can reduce the likelihood of these claims getting to the tribunal stage.
The process for dealing with a complaint about discrimination is the same as for any other grievance. When dealing with a complaint about discrimination:
- You may need to make reasonable adjustments to allow disabled staff to participate.
- Mediation can be useful in dealing with perceived discrimination issues.
- Monitor the outcome after the grievance has been dealt with, even if you did not find that there had been discrimination.
- Consider whether you can improve your systems, procedures or policies to avoid discrimination in future. For information on what policies and procedures you should have in place to ensure that you have done everything in your power to prevent discrimination, see HR policies. For a template staff handbook containing key HR policies, see Staff handbook and policies.
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Marion joined Sparqa Legal as a Senior Legal Editor in 2018. She previously worked as a corporate/commercial lawyer for five years at one of New Zealand’s leading law firms, Kensington Swan (now Dentons Kensington Swan), and as an in-house legal consultant for a UK tech company. Marion regularly writes for Sparqa’s blog, contributing across its commercial, IP and health and safety law content.