The different types of discrimination within the Equality Act 2010 are:
• direct
• indirect
• associative
• perceived
• victimisation
• harassment.
Direct discrimination
This occurs when treating someone less favourably than another because of a protected characteristic.
For example:
- Deciding not to recruit an individual because they are disabled.
- Promoting or demoting someone because they're of a specific age, regardless of their ability or experience.
- Promoting a man in preference to a woman because of their sex.
- Refusing to employ an individual because of their race (or ethnicity) skin colour or religion.
- Promoting a heterosexual man rather than a gay man because of their sexual orientation.
Indirect discrimination
Indirect discrimination occurs when a rule, policy or procedure is applied which puts a person with a protected characteristic at a disadvantage when compared with other groups/others not holding that protected characteristic (in legal terms, this is known as disparate or disproportionate impact).
To establish indirect discrimination, it is also necessary to show that:
- an individual is put at a disadvantage as a result of the disparate impact; an
- that the employer cannot show the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
For example:
- A criterion that an employee must have at least 10 years’ service before being eligible to apply for promotion, means that employees under the age of 26 cannot gain promotion. This would be unlawful unless the employer could show that there are good reasons for the 10 years’ service in the selection criterion.
- An employer requires all employees to work full time. Female employees with childcare requirements may be disadvantaged disproportionately (because women are statistically more likely to have childcare responsibilities). A female employee who has difficulty working full time and is refused part-time or job sharing, would be subjected to indirect sex discrimination unless the employer can show that full-time working is essential, and it cannot accommodate or allow any flexibility.
- An arrangement that unsociable shifts must be undertaken by those without childcare responsibilities would disadvantage more men than women (again given childcare responsibilities). Also, as it is currently statistically less likely for same-sex couples to have children or young families, whilst the policy appears to treat all employees without childcare responsibilities equally, in practice it may place LGBT+ staff at a particular disadvantage and amount to indirect discrimination.
- All employees are required to arrive at work at 8am and someone who is disabled has difficulty travelling in the rush hour to arrive on time; not allowing the employee to start and finish later might indirectly discriminate against them unless the hours can be justified. The employer would have to show that the need for that start time for every employee outweighs the discriminatory impact. In addition, there is an obligation to make reasonable adjustments for disabled employees and candidates (see below): an employer would have to explain why a late start time is not reasonable.
Associative discrimination
Associative discrimination occurs where an individual is discriminated against because they associate with an individual (or group) with a protected characteristic. For example, harassing a person or treating them less favourably because they are friends with an individual who has a protected characteristic.
It may also arise where unjustified indirect discrimination impacts on those who, whilst not holding the protected characteristic, are also disadvantaged. An example would be excluding a white candidate from recruitment because they live in a postcode area where a rule has been applied to sift out a minority racial group who predominantly live in that area. If an employer decides to exclude any candidate who lives in Tottenham, London, this indirectly discriminates against more black candidates - as that area has a higher black population. The employer could not justify the treatment. A white candidate also living in the excluded area could complain that their exclusion from applying was indirect race discrimination by association, despite not being black.
For example:
- Treating someone less favourably by disciplining them for their attendance because they need time of to deal with their child’s disability, when other staff with (non-disabled) children are allowed flexibility and time off.
- Treating someone unfairly because they are part of a group of young employees, even though they themselves are older.
- Treating someone less favourably because they are married to an Asian person or a Muslim, even though they are not Asian or Muslim themselves.
- Treating someone less favourably because their daughter is a lesbian or because their son is transgender.
Associative discrimination does not apply to marriage or civil partnership discrimination.
Indirect associative discrimination
Indirect associative discrimination is where a neutral PCP is applied by the employer which puts people with a protected characteristic at a particular disadvantage, and puts another person (who does not possess the protected characteristic) at a disadvantage too.
This is a claim for indirect associative discrimination and is now covered by section 19A of the Equality Act 2010, which was incorporated into UK law by the previous government from 1 January 2024 to mirror EU law. The amendments to the legislation and the interpretation in the British Airways plc v Rollett and others (2024) case are both significant, as the scope of protection under the Equality Act is widened.
For example, if an employer imposes a PCP which requires those with childcare responsibilities to undertake an 8am shift, this disadvantages mothers who statistically predominantly do the school run. A father could also bring a claim, although he does not share the protected characteristic of the group predominantly affected, he suffers the disadvantage too.
Perceived discrimination
This type of unlawful discrimination involves treating someone less favourably because it’s perceived (or assumed) that they have a protected characteristic, whether they do or not.
For example:
- Refusing to appoint someone because it is thought that they are disabled when they’re not.
- Refusing to appoint someone because it's wrongly thought that they are a particular age.
- Not recruiting someone because of an assumption they are of certain nationality when in fact they are not.
- Treating someone less favourably because it’s perceived that they're gay when they're not.
Perceived discrimination rarely arises in sex discrimination claims but may well arise if a person is assumed to be, for example, transgender.
Perceived discrimination does not apply to marriage or civil partnership discrimination, where the discriminatory treatment must be shown to have been due to the actual status of being married or in a civil partnership.
Victimisation
Victimisation occurs when someone is subjected to a detriment because they’ve made or supported a complaint of discrimination, raised a grievance about discrimination or supported another in doing so. Victimisation also applies if it’s thought that they have issued legal proceedings or supported another person in such proceedings.
A comparator isn't required for a claim of victimisation, the question is whether the individual who is raising the complaint of victimisation has been subjected to a detriment because of their complaint or support of another, so the motive for the treatment is key.
Post-employment victimisation can also occur, is protected, and would be unlawful. For example, refusing to give a reference for an ex-employee who had made a complaint under the Equality Act 2010, threatened to do so or because they gave evidence to support a colleague who raised an internal discrimination grievance. Refusing to employ a candidate because they had brought a discrimination claim against a former employer or another organisation would also be post-employment victimisation.
Harassment
Harassment is defined as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. For example, in a female-dominated workplace, constantly telling derogatory jokes about male stupidity could be unwanted harassment which a male employee finds offensive. It is not necessary for the person who complains to have the protected characteristic however, and a female employee could also say that they found it offensive as the comments relate to the protected characteristic of sex.
The Equality Act 2010 also makes it unlawful to subject a person to sexual harassment. Sexual harassment is defined as: “unwanted conduct of a sexual nature”. This would be conduct which violates dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment with sexual content or connotation. It also renders unlawful such offensive etc conduct which happens as a result of a person rejecting conduct of a sexual nature or submitting to sexual harassment. For example, making sexual remarks or jokes or making promotion decisions on the basis of sexual advances being accepted or rejected.
The law protects individuals from harassment while applying for a job, in employment and in some circumstances after the working relationship has ended.
In 2023 the UK Government decided not to reintroduce specific legislation making employers liable for harassment that comes from a third party (for example, a customer or a service user). This may be revisited at some point in the future. However, employers may be liable for breach of other legal duties, including breach of contract, direct discrimination and the Protection from Harassment Act 1997. This, and good practice, mean that employers should continue to take steps to protect employees from all forms of harassment within the workplace.
Find out more in our factsheet on harassment and bullying at work.
Positive action
Positive action is about taking specific steps to improve equality in the workplace including improving the representation of people currently under-represented in the workforce. It can be used to meet a group’s particular needs, lessen a disadvantage they might experience or increase their participation in a particular activity. Examples include:
- placing job adverts to target particular groups, to increase the number of applicants from that group
- statements in job adverts to encourage applications from under-represented groups, such as ‘we welcome applicants from specific under-represented groups’
- offering training or internships to help certain groups get opportunities or progress at work
- offering shadowing or mentoring to groups with particular needs
- hosting an open day specifically for under-represented groups to encourage them to get into a particular field
- favouring the job candidate from an under-represented group, where two candidates are ‘as qualified as’ each other.
You must be able to show that positive action is an appropriate way for an organisation to achieve one of these aims and the steps taken have been carefully thought through. Using positive action at work is voluntary. However, public sector employers should consider using positive action to help them comply with their Public Sector Equality Duty. See guidance from the EHRC and guidance from the Government Equalities Office.
Exceptions
There are some limited exceptions which relate to recruitment, dismissal, redundancy or retirement including: age limits, compliance to another law and national security.
There are two exceptions which relate to dismissal, redundancy or retirement and which apply only to some employers or jobs:
- having or not having a particular religion or belief (applies only to religion or belief organisations)
- having or not having a particular protected characteristic (applies only to organised religions or jobs for the purpose of an organised religion)
There are also specific requirements which employers need to consider if redundancy decisions affect women who are pregnant or on maternity leave.
Equality law allows you to treat a disabled person better – or more favourably – than a non-disabled person. This recognises that disabled people can face greater barriers to participating in work and other activities. See section of Disability below.
Occupational requirement
Where there is an occupational requirement to employ a person with a particular protected characteristic, very limited exceptions may apply. The employer must be able to show that there is a genuine need, taking account of the type of work, the nature of the organisation and its services, and the particular role or context. For example, there may be a genuine occupational requirement to employ a person of a particular race or religion. Another example might be certain hospital or prison work providing special care for one sex. There are also specific exceptions for religious organisations. The requirements must be genuine and proportionate (for example, usually would not be permitted where the role is an administrative function rather than face to face with those to whom the service or work is delivered).