HR Advice Hub

Is Unfair Treatment at Work Always Discrimination?

Many employers worry that treating an employee unfairly could automatically amount to discrimination.

Likewise, employees sometimes believe that if they have been treated unfairly, they must have experienced discrimination. While unfair treatment can sometimes be discriminatory, the two are not the same thing.

Understanding the difference is important for employers. It can help you respond appropriately to workplace concerns, investigate complaints fairly and reduce the risk of legal claims.

Unfair Treatment and Discrimination Are Not the Same

Not every instance of unfair treatment is unlawful discrimination. An employee may feel they have been treated unfairly because they:

• Were overlooked for training.

• Were refused annual leave.

• Received negative feedback.

• Were managed differently from colleagues.

• Were not selected for promotion.

These situations may feel unfair to the individual, but that does not automatically make them discriminatory. For treatment to amount to unlawful discrimination, it must generally be linked to a protected characteristic under the Equality Act 2010.

What Are Protected Characteristics?

The Equality Act 2010 protects individuals from discrimination because of certain characteristics. These are:

• Age

• Disability

• Gender reassignment

• Marriage and civil partnership (in limited circumstances)

• Pregnancy and maternity

• Race

• Religion or belief

• Sex

• Sexual orientation

If the treatment is connected to one of these protected characteristics, there may be grounds for a discrimination claim. If it is not, the issue may still need addressing as an employee relations matter, but it is unlikely to amount to unlawful discrimination.

Can Someone Be Treated Unfairly Without It Being Discrimination?

Yes. For example, imagine a manager consistently gives one employee the least desirable shifts simply because they do not get on with them. This behaviour may be bias, poor management and could damage morale, but unless it is connected to a protected characteristic, it is unlikely to amount to unlawful discrimination.

Similarly, an employee may feel another colleague receives preferential treatment. While this can create workplace tensions, favouritism alone is not automatically discrimination.

When Could Unfair Treatment Become Discrimination?

Unfair treatment may become discrimination where there is a connection between the treatment and a protected characteristic. For example:

• An employee is overlooked for promotion because of their age.

• A disabled employee is refused reasonable adjustments.

• A pregnant employee is excluded from training opportunities.

• An employee receives offensive comments because of their race or religion.

In these situations, the reason behind the treatment is crucial. The same action can be lawful in one circumstance and discriminatory in another depending on why it occurred.

Employers Should Look at the Evidence

When concerns are raised, employers should avoid making assumptions. Instead, consider questions such as:

• What happened?

• Has the employee identified why they believe the treatment was discriminatory?

• Is there evidence linking the treatment to a protected characteristic?

• How have other employees been treated in similar circumstances?

• Is there a legitimate business reason for the decision?

Taking an objective approach helps ensure concerns are investigated fairly and consistently.

Fair Processes Help Reduce Risk

Many discrimination concerns arise not because managers intended to discriminate, but because decisions were poorly communicated or inconsistently applied. Employers can reduce risk by:

• Applying policies consistently.

• Keeping clear records of decisions.

• Training managers on equality and discrimination.

• Explaining the reasons behind workplace decisions.

• Investigating concerns promptly and objectively.

Even where a complaint does not amount to discrimination, it may highlight wider management or employee relations issues that should still be addressed.

Need HR Support?

Discrimination complaints can be complex, and every situation is different. Employers should avoid dismissing concerns simply because they believe they have acted fairly. Equally, they should not assume that every allegation of unfair treatment automatically amounts to discrimination.

Taking time to understand the facts, consider the legal framework and follow a fair process will help employers make informed decisions while reducing the risk of disputes.

If you're unsure whether a workplace issue could amount to discrimination, or you'd like support managing employee relations concerns fairly and consistently, BloomHR can help. Contact us for more information.