What is discrimination? Knowing your rights

You may have heard the term 'discrimination', but what does it mean and what are your rights if you've been discriminated against? If you’ve experienced discrimination, you’re not alone and you have a right to speak out. The Mix spoke to the legal experts at Mishcon de Reya to find out more.

What is discrimination?

Discrimination is when you treat someone less favourably because they have what’s known as a “protected characteristic”.

There are nine protected characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

What constitutes less favourable treatment?

Less favourable treatment can be anything that puts someone with a protected characteristic at a disadvantage, compared to someone who does not have that characteristic.  Some examples of less favourable treatment include:

• Making it harder for someone to do their job
• Excluding someone from opportunities or benefits
• Causing someone emotional distress
• Causing someone financial loss

It’s important to trust your feelings – if a situation doesn’t feel right, or you have been made to feel uncomfortable, it may constitute discrimination. The behaviour should be investigated and you should seek support.  It is best to make a complaint as soon as possible – see the further details below on this.

Protection from discrimination

You are protected against discrimination under the Equality Act. This act makes it unlawful to discriminate against someone because they have one of the protected characteristics.

If you have experienced unlawful discrimination, you may have the right to bring a discrimination claim in an Employment Tribunal (if the incident happened at work) or other civil court.

You are protected against discrimination when you are:

• At work
• At school, college or university
• A consumer
• Using a public service
• Buying or renting property
• A member/guest of a private organisation

Different types of discrimination

There are different forms of discrimination that fall under the Equality Act. It’s important to understand what they are so you can recognise them and take action if you experience them.

Direct discrimination

This is when someone is put at a disadvantage or treated less favourably because of a protected characteristic. For example when an employer doesn’t offer someone a job they are qualified for because of their sexuality.

Indirect discrimination

Indirect discrimination happens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group.  For example, a requirement that job applicants have at least five years’ previous work experience. Such a requirement would likely discriminate against younger people.

There are instances where age discrimination (either indirect or direct) can be objectively justified, and therefore not unlawful. More detail about objective justification is given in the ‘Justifying discrimination’ section below. Direct discrimination by perception

This is when someone is given an unfair disadvantage because it is believed or assumed that they have a protected characteristic (but they do not actually possess the protected characteristic). For example, someone is turned down for a university place because they are believed to be trans or non-binary.

Discrimination by association

This is when someone is treated less favourably because they are connected to a person who has a protected characteristic. For example a landlord makes offensive comments about their tenant because the tenant’s partner is Muslim.

Discrimination arising from disability

Discrimination arising from disability is when someone is put at a disadvantage or treated less favourably because of something that results from a disability, not because of the disability itself. For example, a teacher gives a student a detention because they were unable to complete an assignment due to having to attend a medical appointment for their disability.

Failing to make reasonable adjustments

It is a form of discrimination if reasonable adjustments aren’t made to accommodate a disabled person, for example if a lecturer doesn’t allow a student with diabetes to take breaks so they can regulate their blood sugar.

Harassment

Harassment is also a form of discrimination. This is when someone experiences unwanted behaviour because of a protected characteristic, such as hostility, insults or humiliation. To be harassment, the unwanted behaviour must have either violated the person’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for the person. For example, a staff member at a restaurant is aggressive to a customer because of their race.

Sexual harassment

Sexual harassment is unwanted behaviour of a sexual nature. This type of harassment does not need to be related to a protected characteristic.

Victimisation

This is when someone is treated unfavourably because they have made a complaint about discrimination or have supported someone who is making a complaint. For example, a doctor refuses to treat a patient because they have made a discrimination claim about their colleague.

Justifying discrimination

In certain exceptional circumstances, discrimination can be justified (and is therefore not unlawful). This is only where the person has a good enough reason for treating someone unfairly. This is known in legal terms as ‘objective justification’. The person who is discriminating must be able to show that it is ‘a proportionate means of achieving a legitimate aim’.

The legitimate aim must be a genuine reason, and not discriminatory in itself. It could be, for instance, the health and safety of individuals, the requirements of a business or the desire to make a profit.  The aim or the reason behind the discrimination must be fairly balanced against the disadvantage suffered because of the discrimination. If there are better and less discriminatory ways of doing things, it will be more difficult to justify discrimination. Economic reasons alone are not enough to justify discrimination, but costs can be taken into account if the person can show there are also other good enough reasons for the treatment.

Only the following types of discrimination can be justified:

• direct age discrimination
• indirect discrimination
• discrimination arising from a disability

An example given by the Citizens Advice Bureau for objective justification is a requirement for all job applicants to the fire service to take a number of physical tests. This could be indirect discrimination because of age, as older people are less likely to pass the tests than younger applicants. But the fire service can probably justify this because fire-fighting is a job which requires great physical capability. The reason for the test is to make sure candidates are fit enough to do the job and ensure the proper functioning of the fire service. This is a legitimate aim. Making candidates take physical tests is a proportionate way of achieving this aim.

What’s the difference between discrimination and bullying?

Bullying has no legal definition, but bullying can also fall under harassment (and can therefore be protected under the Equality Act) if it relates to one of the protected characteristics.

Even if the bullying doesn’t relate to a protected characteristic, you still deserve support. Look at our bullying page for more information.

Should I make a complaint if I think I’ve experienced discrimination?

We suggest taking steps to address the discrimination as soon as possible after it has happened, as there are time limits for bringing claims relating to discrimination. In an employment context, the usual time limit is three months (less one day) from the date of the discriminatory act.

In an education context, the time limit is six months (less one day) from the date of the discriminatory act.

You do not have to go straight to bringing a claim (and it is generally not recommended to do so). It is usually best to go through the relevant complaints procedures first, to see whether you can reach a resolution that you are happy with before contemplating bringing a claim.  You should make sure that you are prepared by taking lots of notes detailing exactly what has happened, when, where and who was involved, and thinking about what outcome you would ideally like, for example, do you want an apology, a change in policy, or are you looking for compensation? You might also want to take a look at this information from Citizens Advice, to see whether your complaint might constitute discrimination.

Remember to pay attention to your feelings and only take this step when you feel safe to do so. It can help to involve someone you trust, so you have some support through the process, or speak to a counsellor. If you find the process stressful, you should visit your GP and make sure you are looking after your health. You can also speak to our team for support.

Making an informal complaint

It’s often best to try to resolve your problem informally first.  This means speaking to:

• Your manager if the discrimination happened at work
• A senior member of staff at your school, college or university if the discrimination happened at your place of education
• Your landlord/estate agents if you are complaining as a tenant
• The trader/service provider if you are making a complaint as a consumer

This can often be a simpler solution and result in a quicker resolution.  As it avoids any formal/legal action, it can also be cheaper and less time and energy consuming.

Making a formal complaint

If you are unable to resolve the issue this way, or you think the issue is too serious to be handled informally, you can make a formal complaint.

You can do this at work by telling your HR team you want to raise a grievance. There will likely be a grievance policy that you need to follow. Most places of education, businesses and public services will have a formal complaints procedure, so you will need to ask what this is and follow the required steps.

What to say when you complain

Whether you decide to complain informally or formally, you should make sure to:

• Explain what has happened and why you think it falls under the Equality Act
• Mention if anyone else witnessed the discrimination
• Explain how the discrimination has affected you and how you feel
• Describe what harm or disadvantage you have suffered
• Explain why you think you were treated unfairly
• State the outcome you want

Make sure you keep a record of all the communications, as you might want to refer to them later.

Settling your claim

If you have a complaint against your employer, landlord, school (or any other body), it might be possible to settle your claim against them.  Usually, this would involve both parties signing an agreement which offers you some compensation, in exchange for you waiving your right to bring a claim against the person or body which you are settling with.

A settlement agreement is a legal contract which you have to stick to, or you could be asked to repay the money you received under the settlement and potentially other costs too. It is very likely that this agreement must be kept confidential.

The amount of money that you receive under a settlement agreement will usually depend on your negotiating position and how strong your claims are.  It is recommended to get legal advice on your potential claim before agreeing to a settlement agreement.

Helpful advice on agreeing a settlement agreement with your employer can be found here.

Court action

If you don’t get the response you want through other methods, or if you can’t resolve the issue or agree a settlement, you can consider taking legal steps and going to court.  It’s important to note that this process can be very expensive, time-consuming and stressful, and there is no guarantee that you will win. Citizens Advice has some helpful advice on taking legal action which you can find here.

It can feel scary to take this legal step, particularly if you are still upset by what happened, and it is highly recommended to seek legal advice before doing so. It’s worth remembering, though, that other people have done it and had success! Take a look at this case from the UK in which a 16-year-old girl won £18,000 in compensation for a sexual harassment claim.

Useful resources

• Information from Acas on discrimination and bullying
• More about getting information about your discrimination case
• Taking legal action about discrimination
• Discrimination in education
• Discrimination in housing
• Discrimination in health and care services
• Discrimination in the provision of good and services