CQC
Understanding types of
discrimination in the workplace
Equality and diversity is an important concept, but it is often difficult to translate it
into practice in a health and social care setting. David Thornicroft offers some useful
suggestions in this article
E
quality and diversity is a vital part of good practice
in health and social care. But do we really know
what it means? And even if so, do we really know
how to translate it into practice in the care home
setting? The purpose of this article is to define what the
terms means, and then to look at some practical ways of en-
suring it occurs in the work place.
Understanding the term ‘discrimination’
If asked ‘Is it OK to discriminate at work?’, most people
would respond with an emphatic ‘No’. However, logically,
this means that everyone must be treated the same—so all
members of staff should be paid exactly the same salary, and
should be expected to carry out exactly the same tasks. This
highlights that discrimination is not necessarily a bad thing.
In fact, it is a necessary part of good practice in all work set-
tings, not just health and social care. The important point is
not whether people discriminate, but how and why.
For example, a manager has two people applying for the
same job at a specialist dementia care home, one man and
one woman. They are equal in every respect (e.g. age, quali-
fications and references) except one: the man has 5 years’
more experience of working in a specialist dementia serv-
ice than the woman. The manager chooses the man rather
than the woman because of this extra experience. This is dis-
crimination (in other words ‘choosing’, or ‘making distinc-
tions’) but it is perfectly legitimate. If, however, the manager
chooses the woman, simply because she prefers working
with women, or thinks a woman would fit much better into
the team, the manager is not justified. This would open up a
claim of unfair discrimination against the man.
Equality and diversity is not about treating everyone the
same. It is about treating different people fairly and making
sure that such treatment is always reasonable.
Equality Act 2010
In 2010 there was a major consolidation of equality
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legislation with the introduction of the Equality Act. The
Equality Act 2010 is the law that bans unfair treatment and
helps to achieve equal opportunities in the workplace and
the wider society. The Act replaces previous legislation such
as the Sex Discrimination Act, the Race Relation Act and the
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Disability Discrimination Act. This single Act is hopefully
simpler to understand and enforce.
The Act covers nine ‘protected characteristics’, which
cannot be used as a reason to treat people unfairly. Every
person has one or more of these characteristics, so the Act
therefore protects everyone against unfair treatment. The
nine protected characteristics are: age; disability; gender re-
assignment; marriage and civil partnership; pregnancy and
maternity; race; religion or belief; sex; sexual orientation.
It is unlawful under the Act to discriminate against
someone, directly or indirectly, on the basis of any of these
nine protected characteristics. It is also unlawful to harass or
victimise people, or to fail to make reasonable adjustments
for a disabled person. The Act prevents unfair treatment in
the workplace; when providing goods, facilities and services;
and when exercising public functions, in the management
of premises, in education and by associations.
To go back to the example from earlier, the manager
who chooses the female applicant even though the male
applicant is more experienced would almost certainly be
judged to have breached the ‘sex’ protected characteristic.
Positive action and positive discrimination
The Equality Act recognises that some groups who face
discrimination because of their protected characteristics
may need more help or encouragement than others. This is
because some groups are disadvantaged, underrepresented
or have different needs from the population as a whole due
to past or present discrimination, exclusion or experiences.
Positive action
The Equality Act allows service providers to take action that
may involve treating one group more favourably than an-
other, where this is a proportionate way to help them over-
David Thornicroft Owner, St Thomas Training
david@stthomastraining.co.uk
229
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CQC
Box 1. Top tips for communication
Use observation skills to learn about how the other person communicates. As
zz
far as possible try to mirror the other person’s body language. For example if
the other person leans forward when speaking, because that is normal in their
culture, you might lean back, which might be seen as rude. So try instead to
mirror the other person’s communication preferences, even if this seems a little
strange to you
Appreciate differences—behaviour that might be derogatory or insulting in one
zz
culture might be commonplace in others
Do not assume that everyone from a particular culture or country will behave
zz
and communicate in the same way
Be patient—remember that some styles of communication might take longer
zz
than you are used to
Key points
Care home staff should understand when discrimination is, and is not, acceptable
zz
There are nine protected characteristics of the Equality Act 2010
zz
Health professionals should understand the difference between positive
zz
action and positive discrimination
Care homes can audit their service against the Act
zz
come a disadvantage, participate more fully, or meet needs
that are different from the population as a whole. This is
called ‘positive action’.
Positive action is voluntary, but not compulsory. It is
allowed when three conditions are met:
zz You must reasonably think that a group of people who
share a protected characteristic and who are, or who
could be using your services, suffer a disadvantage linked
to that service, have a disproportionately low level of
participation in that service, or need different things
zz Action taken is intended to meet the group’s different
needs, enable or encourage the group to overcome or
minimise that disadvantage, and/or enable or encourage
that group to participate in that activity
zz Action taken is a proportionate way to increase
participation, meet needs or overcome disadvantages.
An example of where this might be legitimate would be if
an organisation ran a drop-in centre for elderly people. The
manger may recognise that the centre rarely attracts people
from a particular minority ethnic community, despite being
situated in an area where that community is present. The
manager may decide to increase awareness of the centre by
advertising it in a particular language in a local newspaper.
It is not lawful to use positive action unless all three
conditions are met. If they are not, then the action can
constitute unlawful direct discrimination.
Positive discrimination
Generally, positive action is about encouraging and enabling
certain groups of people, who regularly face discrimination,
to get ahead and succeed. Positive discrimination, on
the other hand, is more about using an individual’s
characteristics (e.g. a person’s race, religion, or sexuality) as
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the deciding factor in, for example, a job promotion.
Positive discrimination is usually illegal in the UK. Howev-
er, positive discrimination can be used legally: as a tie-break-
er; in relation to all employment decisions for disabled people
and transsexuals; or if a person’s protected characteristic is
a ‘genuine occupational requirement’ for a job.
For example, it would be lawful to use a job applicant’s race
as a way of breaking a tie if he or she was genuinely equal
in all other respects to the other applicant(s). It is also lawful
to allow disabled people to jump ahead of candidates, even
though their application may not be otherwise as strong.
The third of these areas is perhaps the most difficult to
grasp. It is not, for example, about increasing the number of
women in the staff team because there is an imbalance. It is
only justified if the person’s characteristic is genuinely need-
ed in order for them to be able to carry out the job properly.
For example, for a refuge for women escaping from domestic
violence, it would be fair to say that residents would expect
all the staff to be female, in which case, it would be legiti-
mate to specify in the advert that only females should apply.
Attitudes to residents
These issues apply just as much to residents as they do to
staff members. It might be worth doing a simple audit of the
service provided to residents using the protected character-
istics of the Equality Act. Take each characteristic one at a
time and analyse if the service caters for the varying needs
of each person.
For example, in relation to sexual orientation, what would
staff members’ attitudes be towards a gay resident? Would
he or she feel comfortable telling staff or other residents
about his/her sexuality? Are there subtle ways in which
heterosexual relationships are reinforced as ‘normal’—for
example, how many of the photos that are posted on the
walls depict same sex couples? What would the care home’s
attitude be if a same-sex couple wished to share a bedroom?
This protected characteristic is just an example, but staff can
ask similar questions regarding the other characteristics.
Cultural diversity and communication
People of different cultures communicate differently with
each other. This communication is both verbal and non-ver-
bal, and it is a complicated issue. It is up to all staff to make
the effort to understand different cultures, in order to com-
municate effectively (Box 1).
Cultural diversity is about embracing the differences and
acknowledging and respecting these. People from varying
backgrounds and cultures behave and communicate
differently in certain circumstances.
Conclusion
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Care homes staff should not be frightened or overwhelmed
by the concept of equality and diversity. Staff can translate
the theory into practice and, by doing so, enhance the
quality of the service that is provided to residents. nRC
Equality Act 2010 HMSO, London
nRC | April 2014, vol 16, no 4