The Different Types of Discrimination in Health and Social Care?

Discrimination exists in all aspects of life, including in Health and Social Care. Everywhere we look, we see differences and these differences can lead to prejudice; a pre-formed negative judgement or attitude towards someone who is different to ourselves.

Prejudice may lead people to view certain individuals or groups as inferior, or to treat people different to themselves unfairly, or to not consider the feelings, the opinions or the needs of people different to themselves at all. This results in discrimination, which is defined as the unjust or prejudicial treatment of different categories of people.

Discrimination can be based on many different characteristics, however, it is only unlawful discrimination under the Equality Act 2010 if you are treated or treat someone unfairly because of any one or more of the so-called protected characteristics.

These characteristics are:

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

This does not mean that discrimination is not also happening based on other categories, such as:

• Socio-economic.
• Education level.
• Nationality (which is different to Race).
• Regional or national accent.
• Appearance.

Although these are not protected characteristics under the Equality Act 2010, public authorities* have responsibilities not to discriminate under the Human Rights Act 1998. The Human Rights Act also protects people from discrimination, but only in connection with their human rights under the Act.

This means people must not be discriminated against in their enjoyment of their human rights; therefore, the protection against discrimination under the Human Rights Act is wider than under the Equality Act. Whilst the Human Rights Act includes the Equality Act’s protected characteristics, it also protects people from discrimination because of other characteristics.

These are:

• Language.
• Political opinion.
• National or social origin.
• Property.
• Birth.
• Association with a national minority.
• Other status.

An example of where the Human Rights Act 1998 has been applied successfully to combat discrimination in Health and Social Care, and where the Equality Act 2010 could not be applied, is when a council had a policy to pay lower allowances to foster carers who were family members, compared to carers who looked after children who were unrelated to them.

The hearing found there had been a disproportionate difference in treatment on grounds of ‘family status’, which the council had failed to justify. This meant that the policy fell foul of Article 8 and Article 14 of the Human Rights Act 1998.

A public authority is an organisation which provides public services. This can be a public sector organisation, for example the NHS or social services. Private organisations or charities which carry out public services or functions are also called public authorities and this includes private care homes funded by a local authority.

What the research tells us

A recent HR study found that 56% of employees have witnessed ‘inappropriate, illegal or unethical behaviour’ ranging from discrimination to harassment. However, many of these employees do not escalate their concerns due to a fear of not being believed or taken seriously.

The same study also found that whilst men and women witness illegal or unethical conduct almost equally, issues raised by male employees are 26% more likely to be investigated, which is discriminatory in itself.

Researchers at King’s College London have found prevalent and harmful harassment and discrimination committed by and against NHS staff working in London Trusts. Furthermore, they found that women, black ethnic groups and migrant NHS staff were more likely to experience harassment and discrimination than other groups.

A Stonewall report reveals that, shockingly, almost one in four patients (23%) had witnessed negative remarks about LGBTQ+ people from healthcare staff while accessing services. One in seven LGBTQ+ people (14%) said they have avoided treatment altogether for fear of the discrimination they may face. Of those who do seek support, one in eight (13%) have experienced some form of unequal treatment from healthcare staff because they are LGBTQ+.

A quarter of LGBTQ+ people (25%) also faced a lack of understanding of their specific health needs: a figure that rises to 62% for trans patients. More than two in five (43%) lesbian, gay and bisexual people are not confident that medical professionals would identify and consult the right person to make decisions about their care if they were unable to make their wishes known themselves.

Discrimination in Health and Social Care may happen between Health and Social Care providers and those receiving care; between Health and Social Care workers and those receiving care and vice versa; between Health and Social Care providers and their workers; and between Health and Social Care managers and workers and their colleagues and managers.

How discrimination is categorised in law

Direct Discrimination is when someone is treated differently and worse than others because of one or more of the above protected characteristics.

Examples of Direct Discrimination in Health and Social Care may include, but are not limited to:

• A residential care home refusing to accept someone because of their sexual orientation.
• A GP surgery making it more difficult for someone to get an appointment because morning sickness prevents them from booking a morning appointment.
• Not offering health and lifestyle advice to older people or not referring older people to other services because of their age.
• Transferring a male surgery receptionist to the back office following their disclosure that they are undergoing treatment for gender reassignment to become a woman.
• Failing to make reasonable adjustments to resolve something that puts someone at a disadvantage because of their disability.
• A care provider banning spouses from working at the same care home, even if they have no interaction with each other at work.
• A resident, patient or member of staff using derogatory language towards another resident, patient or member of staff of a different race.
• Insisting on only recruiting or promoting women to a particular job because women have previously been discriminated against when applying for that role.
• Not catering for particular religious dietary requirements .

Most people are familiar with the term Direct Discrimination as equality policies usually include a statement that makes it clear that the Health or Social Care provider is committed to ensuring that all employees, job applicants and service users are protected from discrimination based on the protected characteristics of the Equality Act 2010.

Discrimination does not have to be direct to be unlawful

The discrimination may be indirect discrimination, discrimination by perception, associative discrimination, harassment or victimisation.

Indirect Discrimination occurs when an organisation’s policies, procedures, ways of working or rules which apply to everyone have the effect that people with a certain protected characteristic are put at a disadvantage when compared with those who do not share that characteristic.

Indirect discrimination is not usually intentional, but more likely to be the result of an oversight on behalf of whoever created the policy, procedure or rule. Therefore, it can often be presumed that indirect discrimination is a by-product of unconscious bias and is sometimes referred to as Institutional Discrimination.

Examples of Indirect Discrimination in Health and Social Care may include, but are not limited to:

• A care provider introduces a new dress code to the workplace. As part of the rules, they decide to prohibit cornrow hairstyles. This could amount to indirect race discrimination as it is more likely that these hairstyles will be worn by certain racial groups.
• A care provider requires that all staff work on specific days of the week. This could indirectly discriminate against people of certain religions who cannot work on these specified days.
• Requiring employees to work full time may put female employees at a disadvantage. It is more likely that they are the primary carer of their children and may need to work part time or work flexibly. This could constitute indirect sex discrimination.
• A job advert specifying that all candidates must have UK qualifications could constitute indirect discrimination to someone qualified but educated outside the UK.
• Health and Social Care providing generic toiletries that may not be suitable for particular racial skin and hair types could constitute indirect discrimination for those with curly or coily type hair.

Indirect discrimination often operates under the guise of legitimacy and fairness which is why it is so important to carry out policy, procedure or rule impact assessments on all the protected characteristics when creating and reviewing policies, procedures or rules.

It’s also unlawful discrimination if someone treats you unfairly because they think you have a protected characteristic, even if you don’t; this is called Discrimination by Perception.

An example of discrimination by perception is:

• Rejecting a masculine-looking female job applicant who performs best at the interview because, due to her appearance, it is wrongly perceived she is transgender.

Associative Discrimination happens when someone is discriminated against because they have an association with someone of a protected characteristic.

For example:

• Someone whose child is of another racial group is disrespected by caregivers.
• Someone whose friends are elderly is also patronised.
• Someone whose partner is disabled is denied flexible working.

Harassment is a form of unlawful discrimination and includes things like abusive or threatening comments, jokes or behaviour. Harassment is unwanted behaviour which you find offensive or which makes you feel intimidated or humiliated.

Harassment by someone providing healthcare or care services is unlawful if it is because of, or related to, any of the protected characteristics, for example:

• A GP’s receptionist makes offensive comments about your age in front of you to other people in the reception area.
• A porter mimics your accent when taking you for treatment.
• A medical professional makes sexual advances towards you when you come in for a consultation.

Victimisation is when someone treats you badly or subjects you to a detriment because you complain about discrimination or help someone who has been the victim of discrimination. Detriment means you have suffered a disadvantage of some sort or have been put in a worse position than you were before.

For example:

• Someone makes a complaint to a care home that their disabled relative has received unfair treatment by some of the staff. The problem is resolved, however, now they have been told that they cannot help out at the home’s social events even though they have been a long-term helper in the past. This may be because they complained about their relative’s treatment and could be victimisation, which is unlawful under the Equality Act 2010.

Unlawful discrimination can be carried out by anyone within Health and Social Care and can include anyone who is working for the service (NHS or private); those who work directly on healthcare needs, such as professional medical staff, care home workers, other staff members including receptionists, porters and cleaners; and also by the users of the services.

When can discrimination be justified?

In some cases where treatment could constitute discrimination, a healthcare or care provider may be able to justify its behaviour if it is seen as a proportionate means of achieving a legitimate aim. In other words, discrimination could be justified if a healthcare or care provider has imposed certain restrictions on certain people for health and safety reasons.

Examples of how discrimination can be justified are:

• If a care provider were to prohibit people with poor eyesight from taking part in certain activities. This may seem like discrimination in that someone with a disability is being treated less favourably than those with better eyesight, but it could be justified if it is achieving the legitimate aim of protecting health and safety.
• If a health or care worker has a medical condition that means they are unable to safely administer medication to service users is moved to other duties not involving administering medication.

Reducing the likelihood of discrimination in health and social care

Everyone working in Health and Social Care can help to reduce the chances of discrimination happening by working in ways that promote equality, diversity and inclusion.

For example, by:

• Respecting diversity by providing person centred care.
• Treating the individuals that you support as unique rather than treating all individuals in the same way.
• Ensuring you work in a non-judgemental way.
• Following the agreed ways of working in your workplace to create an environment that is free from discrimination but feeling empowered to challenge practices that may be discriminatory.
• Being confident to challenge or confront discriminatory behaviours if you see this is happening in your workplace.

What can you do if you have been discriminated against in health and social care?

If you’ve experienced discrimination by a healthcare or care provider, there are different things you can do. For example, you can talk to the healthcare or care professional who discriminated against you, or make a formal complaint to the provider, or you can make a discrimination claim in court.

When deciding what action to take about discrimination, you’ll need to think about what you’re trying to achieve. You will also need to think about how quickly you need to get a result.

You may want:

• The discrimination to stop.
• An apology, either informal or formal.
• The healthcare or care provider to revise a decision made.
• The healthcare or care provider to change their policy, procedure or rule.
• The healthcare or care provider to train their staff in discrimination issues.
• Compensation for financial losses or for stress or injury to feelings.

It is often best to try to resolve the problem informally first. It may stop the issue from getting worse and it avoids the expense of taking legal action. You should, however, be aware that there are strict time limits for taking legal action; you will need to make your claim within six months less one day of the discrimination taking place. It’s therefore best to act as early as possible.

You can start by making an informal complaint to the healthcare or care provider. This could be to the person who discriminated against you or who you witnessed discriminating against someone else, or to the organisation who employs them. If the issue is not resolved informally, you can make a formal complaint.

You can complain to the healthcare or care provider directly using the organisation’s complaints procedure. After this you can take your complaint to other independent organisations like the Health Ombudsman or to the Care Quality Commission or to the Local Government and Social Care Ombudsman.

If you decide to take legal action about discrimination, you need to be reasonably sure that discrimination has taken place according to the law: Equality Act 2010, Human Rights Act 1998.

If the treatment does not count as discrimination under the law, you may still have been treated badly or unfairly and you may be able to do something about it by making a complaint about your treatment to the healthcare or care provider. Also remember that in some cases, you can do something about discrimination even if it did not happen to you directly.

If you have experienced discrimination, you can get help from the Equality Advisory Support Service (EASS) discrimination helpline telephone: 0808 800 0082 or textphone: 0808 800 0084.