At Lincs Law, we are often contacted by employees who believe they are being treated discriminatory by their employers or colleagues. However, employees aren’t always aware of a key component in successful discrimination cases: the need for the treatment to be linked to a Protected Characteristic. This blog looks at explaining that concept.
What is Discrimination at Work?
All employees have legal protection from being discriminated at work. This protection is a ‘Day 1 Right’. You do not need to have any minimum length of service to pursue a claim of discrimination against your employer and / or colleagues. In fact, you are even protected from discriminatory treatment during the recruitment / interview process.
There are six specific types of discrimination claims. These are:
- Direct Discrimination – This is where you are treated less favourably than someone because of your Protected Characteristic.
- Indirect Discrimination – This is where a policy, criterion, or practice is applied to the whole workforce but results in a specific group who all have the same Protected Characteristic being treated less favourable.
- Harassment – This is where you are subjected to unwanted conduct that relates to a Protected Characteristic and that unwanted conduct violates your dignity or creates an intimidating, hostile, offensive, degrading or humiliating environment.
- Victimisation – This is where you raised a Protected Act and are then treated less favourable because of our disclosure.
- Failure to Make Reasonable Adjustments – This is where you have the Protected Characteristic of disability and your employer refuses to implement reasonable adjustments that could avoid any disadvantages at work which occur due to your disability.
- Discrimination Arising from Disability – This is where you have the Protected Characteristics of disability, and you are treated less favourably because of something that arises in consequence of your disability.
Each specific type of discrimination claim is distinct and has its own legal test. Whether you have a successful claim of discrimination will depend on the specific context and facts of your particular circumstances. It is therefore important to always take specialist employment advice as soon as possible if you believe you are being discriminated at work.
Protected Characteristics.
As you will note from the summary above, a key element of any discrimination claim is that the less favourable treatment / unwanted conduct must relate to or be because of a Protected Characteristic.
There are nine Protected Characteristics as follows:
- Age
- Sex
- Disability
- Race/Nationality / Ethic Origin
- Religion or Belief
- Sexual Orientation
- Gender Reassignment
- Marriage or Civil Partnership
- Pregnancy or Maternity
To have a successful discrimination claim it is vital that you can link the reason for your treatment back to one of the above Protected Characteristics.
Unfortunately, if you were shouted at or bullied at work but the reason wasn’t because of a Protected Characteristics, for example, clash of personalities, poor management skills etc, then it’s unlikely you will be able to pursue a claim of discrimination. However, there may be other claims available to you.
What Should I Do If I am Being Discriminated Against at Work?
If you are facing discrimination at work and that discrimination is linked to a Protected Characteristics, I recommend you take the following steps as soon as possible:
- Raise a Formal Grievance
Your employer has a duty to protect you whilst you are at work. This includes protection from discrimination.
If you consider you are being discriminated against at work, you should raise your concerns with your manager as soon as possible. If your manager is the person who is acting discriminatory, you should raise your concern with your HR Department or an independent manager. They may be able to resolve the situation informally.
If they are not able to resolve the matter informally, you should raise a formal grievance in respect of the behaviour you are experiencing. Once you have raised a formal grievance, your employer will have a duty to investigate your claims. Once they have carried out their investigation, they should provide you with a report which sets out their findings and any recommendations they intend to implement to protect you whilst you are at work.
For more information on Grievance procedure please see our website: https://lincslaw.co.uk/blog/how-do-i-raise-a-grievance-about-work/
- Seek Specialist Employment Law Advice
You should also take legal advice for a specialist employment solicitor as soon as possible.
As discussed above, discrimination claims can be complex, and it is important to understand your rights and options as soon as possible.
Furthermore, you may have the ability to pursue claims at the Employment Tribunal. These claims have strict time limits, as discussed below, and any unnecessary delay may mean that you are barred from bringing your claims.
Do not wait until your after your grievance has concluded to take legal advice as you may be out of time to pursue claims at the Employment Tribunal.
IMPORTANT: Employment Tribunal Deadlines
If the behaviour you have been subjected to meets the definition(s) of discrimination, then you would need to commence a claim in the Employment Tribunal.
There are very specific time limits for bringing claims in the Employment Tribunal. You must commence ACAS Early Conciliation within 3 months less one day from the last act of discrimination or event you are claiming.
ACAS Early Conciliation is a mandatory process that all potential litigants must go through before they can bring a claim to the Employment Tribunal. The aim of ACAS is to try and resolve the dispute between you and your employer without the need for further claims to be brought in the Employment Tribunal. If you are unable to resolve your dispute through ACAS Early Conciliation you will then be able to proceed to the Employment Tribunal.
How Can Lincs Law Employment Solicitors Help You
If you believe you have a claim for discrimination, please call us on 01522 440512 for a free, no obligation, initial phone enquiry. For more information about victimisation, bullying, harassment and discrimination claims, please visit our website at https://lincslaw.co.uk/services/employees/workplace-problems/discrimination-bullying-and-harassment/
Jasmine Stewart
Specialist Employment Solicitor
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