Workplace Discrimination: Your Rights Under the Equality Act 2010

Workplace discrimination is one of the most common reasons people bring employment tribunal claims in England and Wales. The law gives strong protections - and unlike unfair dismissal, there is no qualifying period. This guide explains what workplace discrimination is, the types that are recognised in law, and what steps in similar situations have helped claimants protect their position.

What Workplace Discrimination Is

Workplace discrimination means being treated unfairly at work because of a characteristic that is protected under the Equality Act 2010. The Act covers not just dismissal but a wide range of treatment - from recruitment decisions and pay to promotions, working conditions, and how disciplinary processes are handled.

The most important thing to understand is that no qualifying period applies. You do not need to have worked for your employer for 2 years. A discrimination claim can be brought from your first day of employment - or even before employment starts, if you were treated unfairly during a job application or interview because of a protected characteristic.

The 9 Protected Characteristics

The Equality Act 2010 sets out 9 protected characteristics. Treatment connected to any of these can form the basis of a discrimination claim.

Age covers people of all ages - not just older workers. An employer who refuses to hire someone because they are considered "too old" or "too young" may be acting unlawfully.

Disability includes physical and mental health conditions that have a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Mental health conditions such as depression, anxiety, PTSD, and bipolar disorder can qualify. Some conditions - including cancer, HIV infection, and multiple sclerosis - are automatically treated as disabilities from the point of diagnosis.

Gender reassignment protects people who are proposing to undergo, are undergoing, or have undergone a process of gender reassignment. You do not need to have had any medical treatment for this protection to apply.

Marriage and civil partnership provides more limited protection than the other characteristics. It applies to the workplace but not to recruitment. It covers treatment connected to the fact of being married or in a civil partnership, not to relationships generally.

Pregnancy and maternity protects against unfavourable treatment connected to pregnancy or maternity leave. This applies during the protected period, which runs from the start of pregnancy through to the end of maternity leave.

Race covers colour, nationality, and ethnic or national origins. It can include national origin (such as being English, Welsh, Scottish, or Irish), ethnicity, or membership of a particular racial group.

Religion or belief covers religion, religious belief, and philosophical belief - including a lack of belief. Philosophical belief must meet certain criteria to qualify: it must be genuinely held, concern a weighty matter, have a level of cogency and coherence, and be worthy of respect in a democratic society.

Sex protects both men and women from treatment that is less favourable because of their sex.

Sexual orientation covers gay, lesbian, bisexual, and heterosexual people. It refers to orientation towards people of the same sex, the opposite sex, or both.

Types of Discrimination

The Equality Act 2010 recognises several distinct types of discrimination. Understanding which applies to your situation matters because the legal tests are different.

Direct Discrimination

Direct discrimination happens when someone is treated less favourably because of a protected characteristic than someone without that characteristic would be treated in the same or similar circumstances. A typical example is an employer who does not promote a woman because she is pregnant, or who does not shortlist a candidate because of their ethnic background.

The comparator does not need to be a real person. A tribunal can consider how a hypothetical comparator - someone without the relevant characteristic but in otherwise similar circumstances - would have been treated.

Indirect Discrimination

Indirect discrimination arises when a provision, criterion, or practice applies equally to everyone but puts people with a particular protected characteristic at a particular disadvantage compared to those without it. If the employer cannot show that the provision was a proportionate means of achieving a legitimate aim, it is unlawful.

An example might be a requirement that all employees work full-time hours. That requirement applies to everyone, but it may put women at a particular disadvantage because women are statistically more likely to have childcare responsibilities. Whether it is justified depends on whether the employer can show a genuine business need that outweighs the disadvantage caused.

Harassment

Harassment under the Equality Act 2010 is unwanted conduct related to a protected characteristic that has the purpose or effect of violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment. The effect is judged partly from the perspective of the person affected - the law does not require the perpetrator to have intended to cause harm.

Harassment does not have to come from an employer. It can involve colleagues, clients, or customers. Employers can be liable if they failed to take reasonable steps to prevent it.

Victimisation

Victimisation means being treated badly because you made or supported a complaint about discrimination, or because you did something else protected under the Equality Act 2010 - such as giving evidence in someone else's discrimination case. The law protects people who raise these issues in good faith.

Disability Discrimination in More Detail

Disability discrimination deserves separate attention because the law gives disabled people additional protections that go beyond the four types described above.

Direct disability discrimination works in the same way as direct discrimination for other characteristics. An employer who refuses to promote someone because of a disability is acting unlawfully.

Failure to make reasonable adjustments is a duty that exists specifically for disability. If a provision, criterion, practice, or physical feature puts a disabled person at a substantial disadvantage compared to non-disabled people, the employer is under a duty to take reasonable steps to remove that disadvantage. What counts as reasonable depends on factors including the cost of the adjustment, the size of the employer, and the practicality of the change. Examples include changing a disabled employee's hours, providing specialist equipment, or adjusting performance targets during a period of ill health.

Discrimination arising from disability is a separate type of claim. It arises when someone is treated unfavourably not because of the disability itself but because of something that arises from or is connected to it. A common example is dismissing an employee because of a high level of sickness absence, where that absence was caused by a disability. The employer has a defence if they can show the treatment was a proportionate means of achieving a legitimate aim, or if they did not know and could not reasonably have been expected to know that the person was disabled.

What "Substantial and Long-Term" Means

To qualify as a disability under the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on normal day-to-day activities. "Substantial" means more than minor or trivial. "Long-term" generally means that the effect has lasted at least 12 months, is expected to last at least 12 months, or is expected to last for the rest of the person's life.

An impairment that comes and goes can still qualify if it is likely to recur. A condition that is controlled by medication is assessed as if the medication were not being taken - so a condition that is well-managed but would cause substantial effects without treatment still counts. The tribunal will look at the overall picture, not just whether the person is symptomatic on any particular day.

No Qualifying Period

This point cannot be overstated. Discrimination claims are different from unfair dismissal claims in one fundamental way: there is no minimum period of employment required. The 2-year qualifying period that applies to most unfair dismissal claims does not apply here.

This means that someone who is dismissed in their first week of employment - or even refused a job in the first place - can bring a discrimination claim if the treatment was connected to a protected characteristic. It also means that even if you do not have 2 years' service and cannot bring an unfair dismissal claim, you may still have a strong legal claim if discrimination is involved.

Uncapped Compensation

Compensation for discrimination is uncapped. There is no statutory ceiling on what a tribunal can award. This contrasts with the basic and compensatory awards for ordinary unfair dismissal, which are subject to statutory limits.

Awards in discrimination cases typically cover three things. First, financial losses - past earnings lost as a result of the discrimination, and future losses if the claimant has not yet found equivalent work. Second, injury to feelings - an award to reflect the distress caused by the discrimination. These are assessed by reference to the Vento bands, which set three tiers depending on the seriousness of the conduct. In more serious cases, the top Vento band applies, which can exceed £45,000 for the injury to feelings element alone. Third, in the most serious cases, personal injury damages may be awarded where the discrimination has caused a recognised psychiatric illness.

Tribunals have also awarded aggravated damages in cases where the employer's conduct was particularly high-handed, malicious, or oppressive. Interest can be added to injury to feelings awards and past financial losses.

The 3-Month Deadline

The deadline for bringing a discrimination claim is 3 months less 1 day from the act of discrimination, or from the last act in a continuing series of discriminatory acts. This is a strict deadline.

Before you can bring a claim at an employment tribunal, you must go through ACAS Early Conciliation. That process stops the clock while it is running, but you must start it before your 3-month deadline expires. See the employment tribunal deadlines guide and the ACAS Early Conciliation guide for detail on how the timing works.

If there is a continuing course of discriminatory conduct, the 3-month period runs from the last act in that course. However, it is safer not to rely on this. If you have a specific incident in mind, calculate the deadline from that incident and act promptly. Tribunals have discretion to extend the time limit where it is just and equitable to do so, but that discretion is not exercised generously - it is not a reliable safety net.

Burden of Proof

Under section 136 of the Equality Act 2010, the burden of proof in discrimination cases is split. The claimant must first show facts from which a tribunal could conclude, in the absence of any other explanation, that discrimination occurred. This is sometimes described as establishing a prima facie case.

Once the claimant has done that, the burden shifts to the employer to show that the treatment had nothing to do with the protected characteristic. This burden-shifting mechanism means that claimants do not need to prove discrimination on the balance of probabilities from the outset - but they do need to point to real, credible facts. A tribunal that finds those facts proved but receives no satisfactory explanation from the employer must find discrimination.

This makes contemporaneous evidence - emails, messages, documents created at the time - particularly important. If the employer later offers a different reason for treatment that looks discriminatory, a paper trail from before the dispute arose is far more persuasive than explanations given after the event.

What to Do If You Think You Have Been Discriminated Against

The steps taken in similar situations tend to follow a clear pattern. Gather evidence as soon as possible - emails, messages, performance reviews, meeting notes, CCTV if relevant, and accounts from any witnesses. Evidence degrades quickly, and contemporaneous notes are far more persuasive to a tribunal than recollections made months later.

Consider raising a formal grievance with your employer. A grievance creates a paper trail, engages the ACAS Code of Practice on Disciplinary and Grievance Procedures, and can produce responses from the employer that are useful as evidence. Not raising a grievance does not bar a discrimination claim, but tribunals can adjust compensation where a party has unreasonably failed to follow the ACAS Code. See the how to write a grievance letter guide for practical guidance on what to include.

Calculate your 3-month deadline carefully from the act or last act of discrimination, then start ACAS Early Conciliation before it expires. See the ACAS Early Conciliation guide for how that process works.

Discrimination and Other Claims

Discrimination claims can run alongside other types of employment tribunal claim. Someone who is dismissed for a discriminatory reason may be able to bring both a discrimination claim and, if they have 2 years' service, an unfair dismissal claim at the same time.

Where the dismissal is found to be both unfair and discriminatory, the tribunal assesses compensation on the discrimination basis - which means the award is uncapped. The two claims are not simply added together, but running them together ensures the strongest basis for compensation is put before the tribunal.

See the unfair dismissal guide for more detail on how that claim works and how the two can interact.