What Is Unlawful Discrimination at Work?

Unlawful discrimination at work occurs when someone is treated unfairly, less favourably, or disadvantaged because of specific personal characteristics that the law protects. In England and Wales, these protections are primarily set out in the Equality Act 2010, which consolidates discrimination law and applies to virtually all aspects of employment including recruitment, terms and conditions, promotion, dismissal and redundancy. Understanding what constitutes unlawful discrimination is essential for employees, employers, solicitors and students, as it affects workplace rights, grievance handling and employment tribunal claims. This article explains the legal framework, types of prohibited conduct, who is protected, how claims are assessed, time limits, and practical guidance.

1. Legal Framework and Protected Characteristics

The Equality Act 2010 makes it unlawful for employers or others to discriminate against a person because of a protected characteristic. These characteristics include:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race (including nationality, ethnic or national origins)
• religion or belief
• sex
• sexual orientation

The Act protects not only employees but also job applicants, contractors, former workers, and others involved in the employment relationship. Protection applies at all stages from recruitment to termination.

Discrimination law applies even where disadvantage was not intended; less favourable treatment or disadvantage linked to a protected characteristic can still be unlawful.

2. What Counts as Unlawful Discrimination?

Unlawful discrimination at work can take several forms. These are legally recognised under the Equality Act and apply in employment settings where protected characteristics are relevant.

2.1 Direct Discrimination

Direct discrimination occurs when a person is treated less favourably because of a protected characteristic compared with someone without that characteristic. The less favourable treatment must be because of the protected characteristic.

Examples of direct discrimination:

• Rejecting a job applicant because of their race.
• Offering lower pay to a woman because she is pregnant.
• Refusing promotion to someone because of their sexual orientation.

Direct discrimination can also occur through perception (treating someone less favourably because the employer believes they have a protected characteristic, even if they do not) and through association (because someone is connected to, or associated with, a person with a protected characteristic).

2.2 Indirect Discrimination

Indirect discrimination occurs where an employer applies a policy, criterion or practice in the same way for everyone, but it disadvantages a group of people who share a protected characteristic and cannot be justified as a proportionate and necessary means of achieving a legitimate aim.

For example, a requirement for all workers to have lived in the UK for a long period might disproportionately disadvantage some ethnic minorities who have the right to work but do not meet the residency test. If the employer cannot objectively justify the rule, it may be unlawful.

2.3 Harassment

Harassment is unwanted conduct related to a protected characteristic that either:

• violates a person's dignity, or
• creates an intimidating, hostile, degrading, humiliating or offensive environment.

Harassment can include offensive comments, jokes, gestures, images or conduct that targets an individual's protected characteristic.

Examples include persistent derogatory comments about someone's religion or making unwelcome comments about disability at work.

Workplace behaviour that isolates or excludes someone on the basis of a protected characteristic can also amount to harassment, as a recent tribunal found in a race discrimination context when a team spoke a language that excluded a Polish employee from meetings.

2.4 Victimisation

Victimisation occurs when an employee is treated unfavourably because they have:

• made or supported a discrimination complaint;
• given evidence or information in relation to a discrimination matter;
• intend to do any of these things.

For example, dismissing someone shortly after they raise a discrimination concern can amount to victimisation if the adverse action is linked to their involvement in the complaint process.

2.5 Discrimination Arising from Disability and Failure to Make Reasonable Adjustments

Where someone is treated unfavourably because of something arising from their disability, this can be unlawful discrimination absent justification. Employers also have a specific duty to make reasonable adjustments to avoid disadvantage for disabled employees and applicants.

Failing to make reasonable adjustments - such as adapting duties, providing equipment or altering processes - can itself constitute unlawful discrimination.

3. When Less Favourable Treatment May Be Lawful

Not all less favourable treatment amounts to unlawful discrimination. Employers may lawfully treat workers differently if they can show an objective justification - that is, the action was a proportionate means of achieving a legitimate aim, such as business efficiency or health and safety requirements. However, justification is tightly construed, and employers must demonstrate the necessity and proportionality of the measure.

In limited cases, positive action (such as targeted training to address under‑representation) is permitted if it aims to reduce disadvantage without imposing undue harm on others.

4. Where Unlawful Discrimination Can Occur

Unlawful discrimination can arise at any stage of employment, including:

• recruitment and selection (job adverts, shortlisting, interviewing);
• terms and conditions of employment (pay, hours, benefits);
• promotion, transfer and training opportunities;
• **disciplinary and grievance processes;
• **redundancy and dismissal decisions;
• post‑termination references.

Discrimination may also occur in workplace culture and policies that appear neutral but have discriminatory effects on groups with protected characteristics.

5. Employment Tribunal Claims and Burden of Proof

If an employee or job applicant believes they have experienced unlawful discrimination, they can bring a claim to an employment tribunal. Claims must generally be lodged within three months less one day of the discriminatory act. Employment tribunals are empowered to award compensation for financial loss, injury to feelings and other appropriate remedies.

In tribunal proceedings, the burden of proof follows a two‑stage test: first the claimant must present facts from which discrimination could be inferred; once done, the burden shifts to the employer to explain why the treatment was not discriminatory. A Supreme Court case emphasises the need for tribunal evaluation of all evidence before drawing conclusions.

6. Practical Steps for Individuals and Employers

6.1 For Employees

• Keep detailed records of incidents, dates and witnesses.
• Raise concerns through internal grievance procedures early.
• Seek independent advice (e.g., from advisory services, trade unions or legal advisers).
• If unresolved, notify Acas Early Conciliation before lodging a tribunal claim.

Tribunal claims are subject to strict deadlines, and missing these time limits can jeopardise the right to claim.

6.2 For Employers

• Develop and implement anti‑discrimination policies.
• Provide training on equality, diversity and discrimination law.
• Monitor recruitment and promotion processes for bias.
• Take complaints seriously and act promptly to investigate and address issues.
• Take steps to avoid vicarious liability by preventing discriminatory conduct by managers and staff.

Summary

Unlawful discrimination at work in England and Wales is governed by the Equality Act 2010 and protects individuals from unfair treatment based on protected characteristics such as age, disability, race, religion or belief, sex, sexual orientation, gender reassignment, pregnancy and maternity, and marriage or civil partnership. Conduct that can be unlawful includes direct and indirect discrimination, harassment, victimisation and failure to make reasonable adjustments for disability. Discrimination can occur in many aspects of employment, from recruitment and terms to promotion and dismissal. Employment tribunals can hear discrimination claims and award remedies, subject to time limits and procedural requirements. Both employees and employers should understand their rights and obligations to maintain lawful, fair and inclusive workplaces.