HR Solutions, What are the 4 primary areas of discrimination
1. Introduction
In this month’s Hot Topic, we delve into the four primary areas of discrimination: direct discrimination, indirect discrimination, harassment, and victimisation.
As we explore these concepts and their legal implications, we consider the practical strategies to mitigate tribunal risk and improving equality, diversity and inclusion in your workplace.
2. The Equality Act 2010
The Equality Act 2010 (the Act) was introduced to consolidate all existing separate pieces of discrimination legislation. At the same time, extend discrimination law in line with case law and broaden the type of discrimination to include both associative discrimination (direct discrimination against someone because they associate with someone who has a protected characteristic); and perceptive discrimination (direct discrimination against someone because others think they have a particular protected characteristic).
Protection under the Equality Act extends to employees, as well as those who are contracted to do work personally (for example a self-employed worker who is obliged to perform work personally and who cannot provide a substitute), job candidates and ex-employees/workers.
The Act protects an individual from being discriminated against if the act of discrimination is for one of nine protected characteristics, these are:
1. Age
2. Disability
4. Marriage and civil partnership
6. Race
8. Sex
In Northern Ireland, there is a further protected characteristic of political opinion.
3. The 4 primary areas of discrimination
1) Direct Discrimination
This is when the employer treats an individual worse than how they have treated another, and the reason for the worse treatment is because of a protected characteristic.
To show someone was treated less favourably, you need to make a comparison. If everyone was treated just as badly, then no one was treated worse than anyone else, and it wouldn’t count as direct discrimination. Purely treating people differently does not necessarily indicate direct discrimination, although an Employment Tribunal could draw an inference of discrimination if the explanation given for the difference in treatment is 'inadequate or unsatisfactory'. When deciding whether direct discrimination has occurred, tribunals often ask whether, if the claimant had NOT possessed that protected characteristic (or was associated with someone with it, or was believed to have it), they would have been treated less favourably.
Examples of direct discrimination:
· An older employee is passed over for a training course because their manager believes “it’s not worth training someone their age”. This is an example of direct age discrimination.
· A woman is not promoted because her manager assumes she won’t be flexible in the role since she has a young family. This is an example of direct sex discrimination.
When the Act came into force, it also introduced two further forms of direct discrimination; associative discrimination which is direct discrimination against someone because they associate with someone who has a protected characteristic and perceptive discrimination which is direct discrimination against someone because others think they have a particular protected characteristic.
An important technical note is that not all the nine protected characteristics have the legal scope to allow an individual to claim discrimination by association or by perception, but instead the claim would be based on direct discrimination of a particular characteristic such as sex for example. This is explained further in the relevant Knowledge Base articles, as highlighted below rather than within this Hot Topic:
· Discrimination - gender reassignment
· Marital status or civil partnership
2) Indirect Discrimination
This is where a condition, requirement or policy is applied by the employer which, whilst appearing to apply equally to all employees, disadvantages a group with a protected characteristic. It does this because:
· the proportion of one group that can comply is considerably smaller than those of another group that cannot
· the requirement or condition cannot be shown to be justifiable, and
· the individual affected suffers a detriment because of their inability to comply.
If there is a disproportionate impact on one group, consider whether the requirement/condition is justifiable and proportionate. The burden of showing that the requirement/condition is justifiable falls on the employer not the individual.
When assessing whether indirect discrimination has occurred an ET will assess the employer's need for the requirement and balance that need against the discriminatory effects of the requirement. This involves understanding whether:
1. the employer had a legitimate aim for introducing the policy or practice
2. the policy or practice was a proportionate means of achieving that aim - in other words, there isn’t any other less discriminatory way in which the aim could be achieved.
An ET will want to see evidence that an employer has gone as far as is necessary to meet that need.
Examples of indirect discrimination:
1. A management role is advertised, and the job specification includes a requirement the role is full time. This condition disadvantages women because they are statistically more likely to need part-time or flexible working arrangements due to childcare. This is an example of indirect sex discrimination.
2. A requirement in the Dress Code Policy is that all forms of head coverings are banned. This may disadvantage Muslim women who wear a hijab, Sikh men who wear a turban, or Jewish men who wear a kippah. This is an example of indirect religion or belief discrimination.
3. Requiring all employees to have English as their first language could disadvantage people of different nationalities, even if strong English skills are not necessary for the role. This is an example of indirect race discrimination.
4. A promotion criterion that requires staff to hold a driving licence could disadvantage people with certain disabilities, even if driving isn’t essential to the role. This is an example of indirect disability discrimination.
3) Victimisation
Under the Act, it is also unlawful to treat a person less favourably because they have committed a 'protected act'. 'Protected acts' include:
· previous legal proceedings brought against the employer or the perpetrator
· the giving of evidence at a disciplinary or grievance hearing, or at tribunal
· making complaints about the perpetrator or the employer or their alleged discriminatory practices.
The individual would have to show that the reason for the less favourable treatment is because of this ‘protected act’, and not for some other unrelated reason.
Examples of victimisation:
· An employee raises a formal grievance about discrimination, and afterward, their manager excludes them from important meetings or projects.
· A worker supports a colleague in a tribunal case about unfair dismissal and then receives a negative performance review not based on actual performance.
4) Harassment and Sexual Harassment
Under the Act, Harassment is defined as unwanted conduct which has "the purpose, of violating dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment".
Sexual harassment on the other hand has the same definition except that the unwanted conduct is of a sexual nature and it is distinct in law from harassment that is related to ‘sex’ (i.e. a person’s gender).
It is important to also note, that in addition to claims for harassment/sexual harassment under the Equality Act, all victims have the potential to bring a claim in the civil court under the Protection from Harassment Act 1997 and even bring criminal proceedings when it is a case of sexual harassment.
In October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 introduced a new legal duty on employers to take all reasonable steps in the prevention of sexual harassment during the course of employment. You can read more about this specific legal duty in our separate article ‘sexual harassment’.
Examples of harassment:
· Making repeated jokes or comments about a colleague’s age, ethnicity, or religion
· Displaying offensive images or materials in shared office spaces.
Examples of sexual harassment:
· Making sexually suggestive comments about a colleague’s appearance.
· Sending sexually explicit messages or images via email or messaging apps at work.
· Unwelcome physical contact, such as touching, hugging, or brushing against someone inappropriately.
· Repeatedly asking a colleague out on dates after they have declined.
4. Future developments in equality, diversity and inclusion
The Employment Rights Bill which was introduced October 2024 and is near to completion in Parliament, is set to introduce the following reforms in the area of equality, diversity and inclusion:
· Menopause action plans will be mandatory for organisations employing 250+ employees from 2027. Why not check out our two Knowledge Base templates:
· FORM_ABS04 Workplace menopause action plan (to be used as a strategic company wide tool)
· FORM_ABS05 Individual menopause action plan (this template can be used on an individual basis, specific to your employee’s needs).
Equality Action Plans to be published by employers with 250+ employees, or in the public sector, regarding gender equality.
The duty for employers to take “all reasonable steps” in the prevention of sexual harassment during the course of employment will be amended by requiring employers to take ‘all steps’.
5. Practical strategies to mitigate tribunal risk and improve workplace equality, diversity and inclusion
Our advice for employers to mitigate against tribunal risk in discrimination law and to improve workplace equality, diversity and inclusion (EDI) includes:
· Develop anti-discrimination, anti-harassment, and grievance policies which define terms clearly, outline reporting mechanisms, investigation procedures, and consequences.
· Keep policies updated with legal and regulatory changes and carry out mandatary training of your entire workforce, including management specific training on EDI ensuring that it includes unconscious bias, how to recognise subtle signs of harassment, bias, and victimisation.
· Promote fair recruitment and progression practices such as using structured interviews, operate diverse hiring panels, regularly review promotion, pay, and appraisal processes for bias.
· Monitor and analyse EDI data, and analyse grievances, complaints, and exit interviews to spot patterns and act upon areas of concern
· Set measurable EDI key performance indicators and report progress transparently.
· Foster a diverse and inclusive workplace culture by encouraging open dialogue and employee networks.
· Celebrate diversity through initiatives.
· Promote inclusive leadership and invite employees of all levels to influence, advocate and stand alongside underrepresented or marginalise groups
· Support your employees effectively through flexible working, mental health support, and reasonable adjustments, support for those undergoing gender transitions, religious observance, or accessibility needs.
· Encourage managers to be approachable and responsive.
· Address issues promptly to prevent escalation.
· Ensure investigations are transparent, impartial, and documented.
· Conduct regular EDI audits and policy reviews.
· Benchmark against industry standards and legal updates.
· Gather employee feedback to adapt initiatives and maintain relevance.
6. Further Information
The Knowledge Base is your central point for accessing articles and employment templates. Discrimination is such a fundamental area of employment that the information on the Knowledge Base is vast. At the top of this article, you will find all associated articles to this topic, along with document templates.
7. The Employment Rights Bill:
Keep an eye out for our continued updates on the Employment Rights Bill. We continue to share news developments in our monthly newsletters, and we share with you at the end of each month, what new templates and articles have been added, or which existing ones have been revised – all for legal compliance.
Key tools and advice available on the Knowledge Base include:
1. Template forms for you to carry out your own impact assessments of the various reforms. We currently have available:
a. FORM_ADM05 Impact Assessment – flexible working
b. FORM_ADM05 Impact Assessment - harassment
c. FORM_ADM05 Impact Assessment – tribunal time limits
2. Our article ‘Employment law timetable’ sets out useful information in chronological order of the legislation that is due in. Where we do not have precise implementation date, we provide an approximate timeframe to help you to continue plan.
3. You will find on our home page all new articles that have been added in the previous two weeks. This is a helpful visual when on logging onto the Knowledge Base.
4. Check out our webinar calendar on our events page, as we continue to provide updates on the ERB through our webinar programme.
8. Next month’s Hot Topic
October’s Hot Topic will be about how you can take steps to protect the business from employment tribunal claims. We will explore the different types of dismissal that include constructive, wrongful dismissal, automatic unfair dismissal and unfair dismissal and consider how the new day 1 right proposed under the Employment Rights Bill will impact avenues of claim.
Our accompanying webinar will then take place on Thursday 9 October 2025, for which you can register for this free event here.