Discrimination and Harassment

Discrimination in the workplace is a serious issue and, if not dealt with effectively, can lead to employment tribunal proceedings.

It’s unlawful to discriminate against someone because of a protected characteristic (see further below), and it is also unlawful to treat someone the same when they need to be treated differently because of a protected characteristic.

If you are an employer facing issues regarding discrimination in the workplace, we have a wealth of experience in this area of law, regularly acting in both discrimination and harassment matters. We can support you throughout the process of defending against and preventing future discrimination claims, drawing on our specialist knowledge to provide clear, practical advice to help you navigate what can often feel like a complex minefield.

What is discrimination?

The law relating to discrimination in the workplace is found in the Equality Act 2010 which lists certain “protected characteristics”. Discrimination occurs when individuals or a group of individuals are treated differently as a result of one of these protected characteristics.

These protected characteristics are:

1. Age
2. Disability
3. Gender Identity and Gender Reassignment
4. Marriage or Civil Partnership
5. Pregnancy and Maternity
6. Race
7. Religion or Belief
8. Sex
9. Sexual Orientation.

As well as the above characteristics, it is unlawful to treat employees differently based upon their employment status, in other words, employers cannot treat part-time and/or contract workers differently to full-time workers.

What is harassment?

Pursuant to the Equality Act 2010, harassment is when an individual experiences unwanted behaviour related to one of the protected characteristics (as outlined above), and which has the intention of violating the individual’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This can also include unwanted conduct of a sexual nature.

Harassment can happen in both face-to-face situations and remotely (such as by email, phone and, increasingly, social media). Examples of harassing behaviour may include the following:

1. Denying an employee a training, or promotion, opportunities
2. Malicious rumours being spread about an employee
3. An employee being treated unfairly.

Employers are responsible for preventing bullying and harassment and should have policies in place to protect employees. If a complaint about bullying or harassment is made, you should investigate promptly and objectively.

As an employer, am I responsible for the discriminatory behaviour of one employee towards another employee?

The short answer is yes! The Equality Act 2010 states that both an employee and employer could be held responsible if discrimination happens against another employee ‘in the course of employment’. This is known as ‘vicarious liability’ and involves making the employer liable for the legal wrongs committed by another employee (where there is a sufficiently close connection with the wrongdoing, such that it can be regarded as being carried out in the course of employment). This could be at work or outside the workplace, for example at a work Christmas party or through social media that is linked to work.

However, an employer does have a defence to vicarious liability under the Equality Act 2010 if it is able to show that it took all reasonable steps to prevent the employee from doing the alleged act of discrimination. In this regard, the focus will almost always be on the preventative steps that were taken by the employer prior to the alleged act of discrimination in question (rather than upon any acts the employer took after the discrimination came to light).

If you are concerned about potential discrimination in your workplace, contact our specialist legal advisors today to discuss how we can assist.