Discrimination

Overview

This guidance deals with discrimination in the workplace. It looks at your rights as an employee or worker and, the steps you can take if you feel you are being treated unfairly or may be the victim of unlawful discrimination. The RCN also has a range of resources on equality, inclusion and human rights, that may be of assistance.

The Equality Act 2010 (the Act) applies in England, Scotland and Wales. The Equality Act 2010 was not enacted in Northern Ireland and the further information section below explains this further.  

The Act protects people from discrimination on the basis of what are termed “protected characteristics” which are listed below:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• 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’) meaning that you are protected from discrimination if you are a bank or agency worker.

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.

Direct discrimination

This 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 is called discrimination by association. For example, someone is 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, 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

Harassment is 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

Where you are subject to detrimental treatment because you have undertaken a ‘protected act’. This includes making a claim or complaint of discrimination under the Act or helping someone else to make a claim by giving evidence or information for example, during a disciplinary process.

If you are experiencing discrimination, you should firstly read your employer’s equality and diversity policy and speak to your line manager about your concerns.  It may be helpful to read our sections below explaining in more detail the types of discrimination protected under the Equality Act.

If you are not satisfied with your manager's 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.

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:

• how an employer selects new staff, for example, 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 offered 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
• dismissing an employee or subjecting them to any other detriment on the grounds of age.

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 Work and Pensions has help and support for an older workforce.   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.  Our advice guide on Disability and the Equality Act gives further information,  including how to disclose disability to your employer and how to challenge disability discrimination. 

We also have information in our Health Ability Passport guidance which provides detailed information on reasonable adjustments.

If 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.

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. The law applies regardless of how long a person has been employed by their employer and you are protected to the end of your maternity leave (including additional maternity leave). Please also see our Having a family toolkit.

Recruitment

You do not have to tell a prospective employer that you are pregnant. The fact that you are pregnant should not be considered when determining who gets the job as 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. 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.

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 whilst section 18 of Act prohibits direct discrimination relating to pregnancy and maternity, it does not include discrimination by association or discrimination by perception.

ACAS have further detailed guidance on discrimination because of pregnancy and maternity.

Under the Equality Act 2010 it is unlawful to discriminate on the grounds of race.  The Act says race can mean your colour, nationality, 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. 

If you are experiencing discrimination, 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.

The Act makes it 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, including 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. The Equality and Human Rights Commission website (for England, Scotland and Wales) have further guidance on religion or belief in the workplace.

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 require support please contact us.

The Act makes it 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.

You can also see our guide on Discrimination: equal pay which explains more on discrimination between men and women in the work place which can impact on pay and conditions.

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 can obtain your employer’s dignity at work policy. You may wish to consider a grievance and if so, it is important that you 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.

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.

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.

The Equality Act 2010 has not been adopted in Northern Ireland but there are two laws which promote equality of opportunity for people with disabilities by banning disability discrimination and which give enforceable legal rights to people with disabilities. The are the Disability Discrimination Act 1995 and the Special Educational Needs and Disability NI Order 2005.

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