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What is direct discrimination in a workplace setting?

4 min read  |   28 April, 2021   By Andy Stewart

    

Directly or indirectly, discrimination should never have a home in the workplace. Not only is it against employment law, it is also morally wrong and restricts the diversity your company can embrace.

However, not all discrimination is obvious. It can be missed, and on occasion, misunderstood. It is your job as an employer to root it out and we’re here to help.

What is direct discrimination?

Direct discrimination is when a group or individual under your employment receives worse treatment because of a characteristic they possess. The Equality Act of 2010 refers to these as ‘protected characteristics’.

The employee can be directly discriminated against actively. This is when they receive unfair treatment because of a known protected characteristic, such as sex, race, age or disability.

Another is discrimination by perception. This is where the individual is treated less favourably because they are believed to have protected characteristics.

There is also associated discrimination. This is where the individual receives negative treatment because they are associated with someone’s protected characteristics.

Not all differential treatment is discrimination

Understanding what discrimination at work is - isn’t always straightforward. In some cases, you will have to treat a recruit or employee differently and this does not always mean that they are being discriminated against.

Under the Equality Act 2010 it is only unlawful discrimination if they are being treated differently because of a protected characteristic. This means you can reject people for roles because of tattoos or piercings but sometimes this can fall into a cultural or religious practice, so be aware of this when setting your policies.

Examples of direct discrimination in the workplace

Any form of discrimination in the workplace is unacceptable. By law it doesn't matter if the person discriminating is aware of what they are doing or not.

With this in mind, it is best you know the direct discrimination examples that are labelled as ‘protected characteristics’, so you don’t get caught out:

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

Why it's important to remove direct discrimination from the workplace

It is not just important to remove direct discrimination from your workplace for legal reasons.

Removing discrimination from your company can improve the diversity of your organisation, encourage different views, provide new skills and improve productivity.

Not only that, you will also foster a positive employer brand that demonstrates you are a forward-thinking organisation. Employees will want to work for you while clients and customers will want to be associated with you.

How to tackle direct discrimination in your workplace

Tackle direct discrimination in your workplace by creating an environment where grievances and claims can be raised without risk of consequence. If an employee feels that they are being discriminated against, they can easily raise this issue with their manager.

In this setting, you can often quickly resolve issues by talking it through. Or, if the issue is larger and cannot be resolved by talking, formal procedures can start.

Once a formal grievance is raised you will need to organise a grievance hearing. This will give the employee a full opportunity to explain how they have discriminated against.

Following this, you will carry out an investigation to gain all the information you need. This will involve establishing the facts, interviewing all parties, speaking to any witnesses and gathering evidence.

This will help build a case that will establish the extent of which the individual has been discriminated against.

Create an equal opportunities policy

Although it is not required by law, implementing an equal opportunities policy can demonstrate that your company is actively opposing discrimination.

An equal opportunities policy will be your workplace’s statement of intent. It shows you value diversity, equal opportunities and that you are aware of how discrimination can affect those who work for you.

When creating your equal opportunities policy, include a statement that shows your commitment to protecting all your employees and job applicants from discrimination. State that all forms of discrimination, will not be tolerated under any circumstances.

What is objective justification?

In some instances, a workplace may have to set rules for and employment practices in regards to a person's age. For example, a labour intensive job that may be unsuitable for those over the age of 60.

Objective justification gives a defence for issuing a policy based on someone's age, which in other situations would be classed as direct age discrimination.

To use the objective justification defence, the employer must show that the policy is there for a good reason. Alternatively, the employer can argue that it is a ‘proportionate means of achieving a legitimate aim’.

This justification should prove that the aim is a real and objective consideration. That it is not itself discriminatory but is required to ensure the safety of the employee.

Objective justification should be used if there are no alternate measures available that can meet the initial aim, such as safety procedures to put in practice. If alternate steps can be taken, then there is unlikely to be a sound reason for any policy or age-based rule.

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