According to new research published in the Financial Times, the number of employment tribunal cases in the UK whereby inappropriate “banter” has been used in the workplace increased sharply by 44% in 2021. The term “banter” is increasingly being used in the forum of employment law tribunals to defend or justify allegedly discriminatory remarks. Indeed, it is not uncommon in everyday settings for offensive remarks or inappropriate comments to be diminished and categorised as light-hearted teasing. In employment law terms, however, whether statements made about a person’s personal characteristics are banter or not, they may be considered bullying or harassment by courts. Here we will discuss what is meant by “protected characteristics”, the difference between direct and indirect discrimination, and what employers can do to prevent acts of workplace discrimination.

Employment discrimination law

The Equality Act 2010 (the Act) lays out the law on discrimination, harassment and victimisation in the workplace, the nine protected characteristics, and what is considered prohibited conduct, including direct and indirect discrimination. 

The Act provides protection against discrimination for workers in a range of contexts; specifically, it protects (this list is not exhaustive):

• Employees from discrimination by their employer, a potential employer, or a former employer
• Contract workers against discrimination by the end-user of their services
• Agency workers against discrimination by an employment business (but not the end-user)
• The Police against discrimination by the chief constable, police authority or other body, and
• Members of an LLP against discrimination by the LLP

What are the nine protected characteristics?

Under section 4 of the Act, it is unlawful to discriminate against a person because of any of the following nine protected characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex, and
• Sexual orientation.

What is the difference between direct and indirect discrimination?

The Act also defines two types of discrimination that are considered unlawful; discrimination and indirect discrimination. The differences between these two forms of discrimination are as follows:

Direct discrimination

Section 13(1) of the Act states that direct discrimination occurs when:

“Because of a protected characteristic, A treats B less favourably than A treats or would treat others”. 

This may occur, for example, if a line manager treats one person more harshly than another in the same circumstances, e.g. if a worker is not offered a promotion because they are a woman and a less qualified man is given the role.

Indirect discrimination

Section 19(1) of the Act, which covers the definition of indirect discrimination, states:

“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s”. 

What this means in practice is that indirect discrimination occurs if an act, decision or policy does not intend to treat a person less favourably but has the effect of providing unfair treatment to those with a protected characteristic, e.g. where a worker is required to work full-time as this may indirectly disadvantage women with childcare responsibilities.

How to prevent workplace discrimination

Understanding discrimination in the workplace is essential to its prevention, but this alone is not sufficient. Based on best practice, we know that several elements are required to ensure the consistent and proper prevention of workplace discrimination. Indeed, many firms struggle to bridge the gap between stating the aim of workplace equality and achieving it. To do this requires:

• Regular and consistent training to reinforce that everyone should be treated with kindness, dignity and respect and that where this does not happen, there may be serious consequences
• Ensuring that those at the very top embody the culture of respect for equality and that this filters down the organisational hierarchy
• Treating all complaints related to inequality and discrimination effectively and respectfully. Individuals across your business should feel free to lodge a complaint in the knowledge that it will be taken seriously and action will be taken. There should be no safe space for bullies and those who discriminate against others.
• Proactive risk assessment – the Equality and Human Rights Commission recommends that employers should proactively look for red flags which, if not addressed, may result in discrimination, including power imbalances, job insecurity, lone working, the presence of alcohol, events that raise tensions locally or nationally, lack of diversity in the workforce, and where workers being placed on secondment. Where risk factors for discrimination are identified, affirmative action should be taken to mitigate against such outcomes. Anonymous workplace surveys can be a highly effective way of encouraging workers to come forward with discriminatory acts or risks that need to be addressed.
• Putting in place workplace equality champions whose role is to advocate for equality, monitors equality problems and risks, oversee equality training, and provide support to need help or advice on this equality.

Final words

It is not possible to pay lip service to equality as the risks to any business of doing so can be extremely damaging, including reputation impact, high-staff turnover, poor reviews on platforms such as Glassdoor (meaning that prospective employees may be reluctant to work for you), low morale, and high costs due to discrimination claims. Organisations that are seriously determined to eliminate discrimination can do so by taking the above steps as possible and engaging with an experienced employment law Solicitor.