Discrimination

Overview

Discrimination occurs when you are treated less favourably than someone else on the basis of a protected characteristic. The protected characteristics are:

• age
• disability
• sex
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sexual orientation.

Under the Equality Act 2010, it is unlawful to discriminate against someone because of a protected characteristic. The Act covers the whole spectrum of employment including recruitment, training, promotion, terms and conditions, redundancy, discipline and dismissal. Individuals are protected from discrimination in a number of contexts including employment, access to goods and services, education and housing.

The principles also apply to ‘workers’ in general (rather than simply ‘employees’) and therefore you are protected from discrimination if you are a bank or agency worker also.

RCN Nursing Workforce Standards

The RCN Nursing Workforce Standards are designed to support a safe and effective nursing workforce alongside each nation’s legislation. They include guidance on workforce planning and rostering, as well as staff health, safety and wellbeing. Standards 12 states that the nursing workforce should be treated with dignity, respect, and enabled to raise concerns without fear of detriment, and to have these concerns responded to.

Discrimination or prohibited conduct can take a number of forms:

• direct discrimination – when you are treated less favourably on the grounds of your protected characteristic. For example, not employing a nurse because they are of African origin.
• discrimination by association – discrimination against someone because of their connection/association with someone with a protected characteristic. For example, someone being dismissed because they have had to take time off to care for a disabled relative, even though colleagues with similar or higher levels of absence have not been disciplined for taking time off.
• discrimination by perception – discrimination against someone because they are perceived to possess a protected characteristic. For example, not employing a nurse because the employer (mistakenly) believes the nurse to be gay.
• indirect discrimination – where a provision, criterion or practice that puts someone with a protected characteristic at a disadvantage when compared to others who do not share the same characteristic. It may be possible for an employer to justify indirect discrimination on the grounds that the activity in question was objectively justifiable as a proportionate means of achieving a legitimate aim.
• harassment – unwanted conduct that is related to a relevant protected characteristic, and the conduct has the purpose or effect of violating a person's dignity or creating an intimidating, hostile or degrading, humiliating or offensive environment. For example, being subject to abuse because you are undergoing gender reassignment.
• victimisation – being subject to detrimental treatment because you have undertaken a ‘protected act’. The protected acts include - making a claim or complaint of discrimination under the act; helping someone else to make a claim by giving evidence or information (for example in an Employment Tribunal); making an allegation that someone has breached the act (via a grievance process or civil claim) or done anything else in connection with the act (for example requesting flexible working, reasonable adjustments etc.).

Under the Equality Act 2010, it is unlawful to discriminate against someone because of their sexual orientation.

Homophobic abuse and jokes are not acceptable and your employer must take steps to protect you from harassment or abuse. If you are concerned about this you should consult your employer’s dignity policy. You may wish to consider a grievance and therefore you should contact us for further support.

Civil partnership and marriage

Under the Equality Act 2010, it is unlawful to discriminate against someone because they are married or in a civil partnership. This protection does not extend to persons who are not married or in a civil partnership or are single.

It should be noted that this specific protected characteristic does not attract the full range of protections as with other protected characteristics. For example, the act does not afford protection against discrimination by perception or association. There is also no protection from discrimination if a person is unmarried or single, cohabiting, widowed or divorced.

However, harassment related to civil partnership might amount to harassment related to sexual orientation.

Under the Equality Act 2010 it can be unlawful for an employer to discriminate against a worker because of their age.

Direct and indirect discrimination can arise in a number of circumstances:

• The arrangements an employer makes for the purpose of determining to whom they should offer employment e.g they cannot state in an advertisement that the post must be filled by a person of a particular age.
• Refusing to offer, or deliberately not offering, a person employment on the grounds of age. 
• The terms afforded by an employer to a person in employment, on the grounds of age.
• Not giving a promotion, transfer, training or any other benefit on the grounds of age. For example, the employer withdraws life insurance benefits to workers over a certain age.
• Dismissing an employee or subjecting them to any other detriment on the grounds of age.
• Failure to provide appropriate support or make reasonable adjustments for those with menopausal issues.

Retirement

The default retirement age of 65 has been abolished and in future it will only be possible for employers to operate a compulsory retirement age provided this can be objectively justified as a proportionate means of achieving a legitimate aim. The Department for Business, Innovation and Skills (BIS) gives good practice guidance on the process to be followed when retiring employees.  Go to www.bis.gov.uk and enter 'retirement' into the search box on the homepage. ACAS also has guidance on this area.

Justifying age discrimination

It may be possible for an employer to justify both direct and indirect age discrimination, on the grounds that the activity in question was objectively justifiable as a proportionate means of achieving a legitimate aim. It can be difficult to show that discrimination is justifiable and employers should take care in making judgements about someone’s ability to do a job based on their age.

Under the Equality Act 2010, it is unlawful for an employer to discriminate against a worker because they have a disability.

There is a wide definition of the term ‘disability’ within the act and whether a person can be classed as having a disability will depend on the circumstances. Generally speaking, a person has a disability if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities. Furthermore, some medical conditions automatically count as a disability for the purposes of the Act, for example HIV, cancer and multiple sclerosis.

Visit the Equality and Human Rights Commission website (for England, Scotland and Wales) or Equality Commission Northern Ireland for more information on disability discrimination. Each of these organisations has produced a Code of Practice relating to employment, which is useful to consider if you feel your employer may not be acting correctly.

The Equality Act 2010 introduced a new form of disability discrimination protection and that is protection against discrimination arising from disability. This involves unfavourable treatment because of something arising in consequence of disability, rather than the disability itself. For example, an employee may need regular rest breaks because of their condition, or require specialist reading materials. As with indirect discrimination, the employer may argue that the treatment was a proportionate way of achieving a legitimate aim, and therefore the action is justified.

This form of discrimination is closely related to the duty on employers to make reasonable adjustments (see below).

Apart from discrimination by association or perception, protection from discrimination because of disability only applies to disabled people.

Indirect disability discrimination and discrimination arising from disability only apply to disabled people.

An employer is only under a duty to make reasonable adjustments for a disabled worker or an actual or potential disabled job applicant.

The duty to make reasonable adjustments

If a disabled employee is placed at a substantial disadvantage in comparison with a non-disabled employee as a result of a provision, criterion or practice, physical feature or auxiliary aid, the employer has a legal duty to consider (and make) ‘reasonable adjustments’ for the disabled employee. The purpose of making adjustments should be to remove any barriers that may exist to eliminate the disadvantage and enable the employee to perform their duties whilst maintaining their health and safety in the workplace.   For example, if a physical feature of the working environment that adversely impacts on disabled staff, the employer would have to take reasonable steps to remedy the problem (such as installing a wheelchair ramp). Likewise, if an employee requires assistive aids to help them undertake a certain task, the employer would have to take reasonable steps to provide those aids (such as providing computer screen magnification equipment). Please see our Health Ability Passport Guidance for more information. 

What is ‘reasonable’ depends on the circumstances and is not defined in legislation. However, when making a decision the following factors could be considered:

• the effectiveness of the proposed adjustment
• the practicality of the step
• the financial and other costs incurred
• any disruption caused
• the extent of the organisation's financial and other resources.

If you feel your employer is not giving you enough support, consider speaking to your occupational health department and contact us.

Pre-employment health checks

The Equality Act 2010 places restrictions on the way in which prospective employers can use information about someone’s health or disability when considering them for a post. In general, prospective employers are prohibited from asking questions about someone’s health or disability prior to offering them a job. This includes questions about previous sickness absence. There are a small number of exceptions to this rule. The Government Equalities Office has detailed guidance on this area.

Guidance from the Equality and Human Rights Commission indicates that questions about sickness absence can be asked after a candidate has been offered the job (either conditionally or unconditionally) or has been placed in a pool of successful candidates. However, even then the purpose of these questions should only be to clarify that a person’s health or disability will not prevent them doing the job and enable the employer to consider whether there are any ‘reasonable adjustments’ that can be made.

If you feel you are being discriminated against, you should refer to your employer’s equality and diversity policy and speak to your line manager about your concerns. If you are unsatisfied with the response, contact us as you may wish to follow your employer’s grievance procedure with our support.

Under the Equality Act 2010 it is unlawful for employers to discriminate because of their sex, male or female. It also covers those individuals who are proposing to undergo, are undergoing, or have undergone a process or part of a process for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. It is not necessary for persons to be under medical supervision to affect their gender reassignment in order to be protected. Persons diagnosed with gender dysphoria or gender identity disorder may also be protected under the disability discrimination provisions of the Act, as those condition may have a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities.

Please also see the ACAS guidance on Gender reassignment.

The Equality Act 2010 protects employees, prospective employees and those accessing vocational training from unfavourable treatment on the grounds of pregnancy and taking maternity leave. You are protected right through to the end of your maternity leave (including additional maternity leave).

Recruitment

You do not have to tell a prospective employer that you are pregnant. The fact that you are pregnant should not be taken into account when determining who gets the job. If it were taken into account it would be viewed as discrimination.

Informing your employer of your pregnancy

You must ensure you follow the correct processes when notifying your employer of your pregnancy. See our guidance on pregnancy for further information, and check your employer’s maternity policy. Once you have taken steps to inform your employer of your pregnancy you should not be subject to unfavourable treatment.

Maternity leave

You will be entitled to maternity pay as provided for in your contract of employment and any salary increases that occur while on maternity leave. Your employer must also inform you of any promotion opportunities and changes to your terms and conditions, including reorganisations.

Maternity leave and bank holidays 

Your entitlement to accrue paid time off will depend first on whether or not the bank holiday forms part of any statutory holiday entitlement under the Working Time Regulations 1998 (SI 1998/1833). Under the Regulations, all workers are entitled to 5.6 weeks' paid holiday in any leave year. If the employer includes public holidays as part of the statutory holiday entitlement then any bank holidays that occur during the period of maternity/paternity leave will form part of your statutory entitlement. This means that a day off in lieu or equivalent pay would have to be granted. If your employer grants paid time off on bank holidays, in addition to the statutory minimum, then the potential right to a compensatory day off or pay in lieu in respect of a bank holiday will depend on the terms of your contract or local policy that forms part of the contract.

Returning from maternity leave

You have a right to return to the job you had previously, with the same terms and conditions, when returning during or at the end of ordinary maternity leave of 26 weeks.

Exceptions

It is important to note that though section 18 of Act prohibits direct discrimination relating to pregnancy and maternity, it does not include discrimination by association or discrimination by perception.

Under the Equality Act 2010 it is unlawful to discriminate on the grounds of race, and race includes: colour, nationality or ethnic or national origins.

It is unlawful for an employer to give discriminatory terms of employment, deny promotion, training or transfer or withhold benefits, facilities or services on the grounds of race. Prospective employees are also covered by the Act.

Racism in the workplace

If a colleague or patient demonstrates racist behaviour. For example makes racist jokes, then raise this issue with your line manager. Racist jokes are offensive and can create a hostile working environment. Your employer must do everything reasonably expected of them to challenge and tackle discrimination and harassment.

Under the Equality Act 2010, it is unlawful to discriminate against someone because of religion or belief.

Religion means any religion and a reference to religion includes a reference to a lack of religion. Belief means any religious or philosophical belief and a reference to belief includes a lack of belief. However, if there is conflict between the philosophical belief and fundamental principles of human dignity then it may not be protected. For guidance on what is protected, please visit Equality and Human Rights Commission website (for England, Scotland and Wales) and search for ‘code of practice’.

For a philosophical belief to be protected under the Act it must be:

• genuinely held
• not an opinion or viewpoint based on the present state of information available
• a weighty and substantial aspect of human life and behaviour
• attain a certain level of cogency, seriousness, cohesion and importance
• be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

Time off for religious observance

Your employer would have to prove that allowing you time off would be detrimental to services provided. If your line manager refuses reasonable changes to your work pattern without objective justification this may be considered discrimination. You should discuss this matter with your line manager or human resource department in the first instance.

If you feel you are being discriminated against, you should firstly read your employer’s equality and diversity policy and speak to your line manager about your concerns. If, once you have done this, you are unsatisfied with the response, you should contact us.

You may wish to follow your employer’s grievance procedure. Before you submit a grievance, please read our grievance advice and contact us for help.

If you need emotional support, contact us. Our counselling team may be able to help you.

The Equality Act 2010 came into force in Great Britain in October 2010. This Act consolidates and replaces previous legislation around discrimination including the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality.

Visit the Equality and Human Rights Commission website (for England, Scotland and Wales) or Equality Commission Northern Ireland for more information on discrimination. Both of these organisations have produced a Code of Practice relating to employment, which is useful to consider if you feel your employer may not be acting correctly.

A full text version of the Equality Act 2010 is available on The National Archives website at www.legislation.gov.uk. Please enter the ‘Equality Act 2010’ into the search box on the home page.

(Religion or Belief) Regulations 2003 and the Employment Equality (Age) Regulations 2006.

The Equality Act 2010 has not been adopted in Northern Ireland and therefore separate pieces of legislation remain in force. For further information on variation and harmonisation see the Equality Commission Northern Ireland website. In particular, see the Commission’s briefing note ‘The gaps between GB and NI equality law’ (January 2011) and the ‘Fair Employment Code of Practice’. 

See our guidance:

Discrimination and equal pay

Disability discrimination and the Equality Act 2010

RCN Peer support

ACAS guidance: 

Asking and responding to questions of discrimination in the workplace

Sex discrimination