Case Law
Case law is law developed through decisions made by courts and tribunals. Judges establish, from evidence, the facts of the case, and interpret and apply legislation to specific cases. In England and Wales, case law often creates the legal principles that guide how similar cases are decided in the future.
Regulatory Body
A regulatory body, or a regulator, is an organisation or government body that makes, monitors and enforces rules and regulations, to ensure that the organisations regulated by it operate according to the law. For example, the Charity Commission regulates charities in England and Wales.
EHRC
The Equality and Human Rights Commission helps enforce equality law, challenges discrimination, and provides guidance to employers, public bodies, and individuals about their rights and responsibilities.
ACAS
Advisory, Conciliation and Arbitration Service provides free, impartial advice on employment rights and workplace disputes.
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Protected characteristics
These include race, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief, sex, and sexual orientation.
Race
Race is defined to include colour, nationality, and ethnic or national origins.
Non-Disclosure Agreement (NDA)
A Non-Disclosure Agreement is a legal agreement that limits what someone can share about certain (often confidential) information. In some cases, where an employment contract has been terminated following an employer-employee dispute, an employer may ask the departing employee to sign an NDA restricting what can be said about the dispute. NDAs cannot lawfully prevent someone from bringing a legal claim, from reporting discrimination to the police or regulators, whistleblowing, or cooperating with the police or regulators. However, if you are considering making a protected disclosure (reporting on workplace wrongdoing which you are protected for, such as reporting an illegal workplace activity) after having signed an NDA, you are strongly recommended to seek legal advice as there are strict parameters so that any such disclosure remains protected.
Intersectionality
Intersectionality is a way of understanding that different aspects of identity (such as race, class, gender, sexuality, or disability) do not exist separately, and intersect and interact to shape an individual’s lived experiences and social positions, often resulting in overlapping forms of social, economic, or cultural disadvantage. Kimberlé Crenshaw, a critical race theory academic, coined the term ‘intersectionality’ in a paper in 1989 as a way to help explain the oppression of African-American women. There is an acknowledgement that current legal frameworks do not provide adequate protection against intersectional discrimination involving race.
Direct Discrimination
Direct discrimination occurs when an individual is treated less favourably than another person because of their race, colour, nationality, or ethnic or national origin. Unless there is a statutory (legal) exception, direct discrimination cannot be excused or defended.
Under direct discrimination the treatment complained of must be compared with that of an actual or a hypothetical person – the comparator – who does not share the same protected characteristic (race). An individual is required to show that they were treated less favourably than their colleague (or a hypothetical colleague) of another race would have been treated in materially the same circumstances.
There are three types of direct discrimination. These are when it happens to a person who:
- has a protected characteristic and is treated less favourably. This is sometimes called ‘ordinary’ direct discrimination. For example, someone is overlooked for promotion because they are of Vietnamese heritage.
- is treated unfairly because either someone they know or someone they are associated with has a protected characteristic. This is called ‘discrimination by association’. For example, an employee is overlooked for promotion because their spouse is a Black person.
- is treated unfairly because it is believed that they have a certain protected characteristic, whether or not it is true. This is called ‘discrimination by perception’. For example, incorrectly assuming someone is Asian when they have no Asian heritage and making inappropriate remarks to them in the workplace on that basis
Indirect Discrimination
Indirect discrimination happens when a ‘policy, procedure or practice’ (PCP) that might appear to be neutral has the effect, in practice, of disadvantaging a particular group with a shared protected characteristic, and which cannot be ‘objectively justified’. ‘Objectively justified’ means the employer’s actions are based on fair reasons and are balanced so that they do not disadvantage particular groups more than is absolutely necessary to achieve a legitimate aim.
Indirect discrimination is intertwined with equality of outcomes. For example, a company policy banning dreadlocks, while on the face of it might be a neutral policy as it applies to all employees equally, is likely to disproportionately affect Black people and therefore could amount to indirect discrimination against Black workers.
Indirect discrimination can also occur when a policy would put a person at a disadvantage if it were applied. For example, if you were deterred from applying for a job or taking up an offer of service, because a policy which would be applied would result in your disadvantage (such as a hair policy).
The legal phrase PCP includes the following:
- Decisions around workplace facilities – for example, toilets and common areas
- Policies on ways of working – for example, flexible working or working from home
- Policies on workwear and appearance – such as style of clothing or hairstyle
- Selection criteria used in recruitment ▶ The way employees are selected for redundancy
- Working hours
Recent developments under the Equality Act mean that a person can bring a complaint/claim even if they do not personally have the protected characteristic (such as race), as long as they suffer ‘substantively the same disadvantage’ as those who do – called ‘same disadvantage’ indirect discrimination.
For example, a business owner does not wish to work with South Asians and so avoids recruiting individuals from the Wembley postcode (on the basis that many South Asians live in Wembley). While this recruitment practice discriminates against South Asians, it could also indirectly discriminate against non-South Asians living in Wembley; they would likely suffer from the same disadvantage because of the discriminatory recruitment practice.
Harassment
Harassment is when unwanted behaviour violates someone’s dignity or creates an environment that is ‘intimidating, hostile, degrading, humiliating or offensive’. It can still be harassment even if the person did not mean to cause harm, or if they intended to, but their attempts had no effect. When deciding if behaviour is harassment, the law looks at what happened, the wider circumstances, and how the person experiencing it was affected (a ‘reasonable’ person’s view). A ‘reasonable person’ means an ordinary, fair-minded person looking at the situation in a balanced way.
Microagressions, when repeatedly inflicted, can amount to harassment under the Equality Act.Microaggressions are subtle, often unintentional, comments or behaviours that convey negative or stereotypical messages about a person’s race or ethnicity.
While not a standalone legal category, the Employment Tribunal has increasingly recognised the impact of repeat microaggressions on an individual. The law will look at the impact on the individual in their workplace rather than the intention of the aggressor. Examples include:
- repeatedly mispronouncing someone’s name or refusing to learn it;
- asking ‘Where are you really from?’;
- making assumptions about someone’s abilities or interests based on their race; or
- jokes or ‘banter’ that rely on racial stereotypes.
Third-party harassment
Since October 2024, employers have had a duty to take ‘all reasonable steps’ to prevent sexual harassment in the workplace. While this duty does not, on its own, create a standalone legal claim for third-party harassment across all protected characteristics, it has arguably strengthened expectations that employers take proactive steps to prevent sexual harassment and carry out proper risk assessments. This is relevant for this toolkit, especially in cases involving misogynoir.
The Employment Rights Act 2025 creates a more explicit tool with which to hold employers responsible for harassment of employees by third parties (such as customers or service users) during work, and this will apply to harassment related to all protected characteristics, not just sexual harassment. Expected to come into force in October 2026, the law means an employer may be liable if it has not taken all reasonable steps to prevent the harassment, shifting the focus to whether the employer properly assessed risks and put preventative measures in place, particularly in public-facing or higher-risk workplaces.
Depending on the workplace, ‘all reasonable steps’ to prevent third-party harassment might include clear policies and signage, training (including for managers), risk assessments for public-facing roles, contractual controls with suppliers, banning or excluding abusive customers, altering staffing or security arrangements, prompt investigations, and effective follow-up.
Victimisation
Victimisation occurs when an individual is subjected to a detriment or disadvantage because they have made or supported a complaint of race discrimination or done anything else in connection with the Equality Act. Making a complaint of this kind is known as a protected act.
For example, a racialised employee raises concerns about having been subjected to racism in the workplace because offensive and hostile comments were made about their nationality. Subsequently, they are bullied, excluded from meetings, and undermined by leadership. This treatment is an example of victimisation, as it is a direct response to the employee’s protected act of raising a complaint about discrimination.
Public Sector Equality Duty (PSED)
The PSED is a positive legal duty on listed public authorities that requires them to have ‘due regard’ to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between people who share and do not share a particular protected characteristic. For example, a public sector employer fails to take any action after repeated reports of racial harassment, demonstrating a lack of due regard to the PSED. This may form the basis for a judicial review or be relevant in a discrimination claim against a public body or a body that receives public funding, such as a university or the NHS.
Judicial review is a legal process where the courts examine whether a public body has acted lawfully, fairly, and within its powers when making a decision. Possible outcomes of a judicial review include the court overturning a public body’s decision, ordering a public body to reconsider or take action, stopping unlawful action, or confirming that the decision was lawful.
Discriminatory dismissal
A dismissal is discriminatory if an employee is dismissed for reason related to a protected characteristic. Dismissal happens when the employer terminates the employment relationship, or where the employee terminates the employment relationship citing ‘constructive dismissal’ (due to a breach of contract or being forced to exit an organisation due to a breakdown in trust and confidence) as the reason.
For example, an employee who has repeatedly raised concerns about race discrimination is dismissed on ‘performance’ grounds when the real reason is their act of raising a race discrimination complaint (a ‘protected act’). Not only could the act of dismissing the employee amount to victimisation, it could also be categorised as an unlawful discriminatory dismissal.
Ordinary unfair dismissal occurs when an employee is dismissed by their employer without a lawful reason (performance, conduct, redundancy, illegality or some other substantive reason) or if the employer fails to follow a fair process.
Before bringing an ordinary unfair dismissal claim, an employee must be eligible to bring such a claim. Currently, an employee must have at least two years’ continuous service before they can bring an ordinary unfair dismissal claim. Under the new Employment Rights Act 2025, the government has proposed that a minimum of six months’ continuous service will be required.
However, you are protected from day one of your employment from being dismissed unfairly for discrimination based on grounds of race or any other protected characteristic.
Claimant
A person or group who brings a civil case in a court or tribunal against their employer, the organisation they are providing services to or another person or group, claiming that they have suffered some harm or loss due to the other person or group’s actions or inactions. This includes discriminatory or harassing treatment. The claimant asks for a remedy, such as financial compensation or an order from the court requiring the other person or group to do or stop doing something.
Respondent
A person or group (including an employer or organisation paying for a service) against whom a civil case or appeal is filed by a claimant and who responds to the claims or arguments made against them. The respondent may file a defence, make their own claim (a counterclaim) against the other person or group, or concede the case. The respondent may also ask for a remedy from the court, such as financial compensation or ask the court to refuse to continue with or reject the case or appeal.
Court
A place where legal disputes are heard and decided by a judge including a magistrate, a jury, or a tribunal.
Employment Tribunal
A tribunal (or specialist court) in England and Wales that makes decisions in legal disputes around employment law and for hearing claims from people who think someone such as an employer or potential employer has treated them unlawfully. For example, the Employment Tribunal may make decisions in claims about discrimination, harassment, unfair deductions from pay, etc.
Case
Another word for a legal dispute or a legal matter that can be resolved by a court, a tribunal, or an alternative dispute resolution method, such as mediation or arbitration.
Litigation
The process of bringing a case to a court of law to reach a binding judgment.
Judgement
A judgment is a court’s decision in a case. It typically includes a summary of what the issue is, how the courts have considered the evidence and which laws and rules have been applied to the case to reach the final decision.
Protected Act
An act an individual is allowed to do under equality laws without being subject to any retaliation after. For example, making or supporting another colleague’s discrimination complaint.
Whistleblowing
Whistleblowing is a complex area of law. However, below is a summary explanation of this area for completeness.
When a worker reports, in the public interest, wrongdoing at work, this amounts to a qualifying protected disclosure; the worker is said to have ‘blown the whistle’ and is protected by law from being treated poorly or unfairly or dismissed because they did so.
A qualifying protected disclosure is the disclosure of information which shows one or more of the following has occurred:
- a criminal offence;
- the breach of a legal obligation;
- a miscarriage of justice;
- someone’s health and safety being in danger;
- sexual harassment;
- damage to the environment; and/or
- a cover-up of information about any of the above issues.
Detriment
Detriment is treatment by an employer of an employee that’s demeaning or detrimental. A detriment is often the harm you must show to bring a discrimination claim based on a protected act (see definition of ‘victimisation’ earlier in the toolkit). Detriment is an element of many discrimination claims, not a separate type of claim itself. So:
- Discrimination is the unlawful treatment; and
- Detriment is the negative impact or disadvantage caused by that unlawful treatment.
Examples of detriment can include an employer denying training opportunities, giving an employee harder or more mundane work, making demeaning or humiliating comments, highlighting insignificant issues about employee conduct, not taking grievances and disciplinary issues seriously or withholding a reference, if these immediately follow an individual undertaking a protected act such as making a complaint about racist banter in the workplace.
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Time-barred
‘Time-barred’ means a legal claim cannot be brought because the deadline for making it has passed. A claim is not ‘time-barred’ if the tribunal sees the behaviour as part of an ongoing pattern, so earlier events can still be considered even if they happened some time ago and would ordinarily be out of scope for evidence in a tribunal claim.
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Employee Assistance Programme (EAP)
An Employee Assistance Programme (EAP) is a confidential, employer-funded benefit that provides employees with free, 24/7 support for personal or work-related issues. Smaller organisations may not have an EAP. If you work with a larger organisation, your HR should be able to provide more information on whether you have access to EAP in the workplace.