24th June 2016
Very few managers would openly admit to discriminatory behaviours, even to their closest friends. You might think that you would never discriminate, but the statistics would suggest that workplace discrimination is much more common than you might think.
- more than 3,000 racial discrimination claims were made against employers
- there were roughly 14,000 cases of gender discrimination
- there were approximately 5,000 of disability discrimination
- there were roughly 2,000 cases of age discrimination.
The above figures were recorded in the same year that fees were introduced for Employment Tribunals, to reduce time wasting and ensure that only genuine cases were made.
Interestingly, it’s thought that a lot of discrimination is entirely unintentional. It’s often not a conscious decision, but a complete accident. Still, ignorance is no defence. It’s an employer’s responsibility to be aware of what constitutes discrimination, and how to avoid it.
What groups can be discriminated against?
The Equality Act 2010 is the primary piece of legislation that covers issues of discrimination and unfair treatment.
Listed in the Equality Act are Protected Characteristics. Employers must ensure that these characteristics do not lead to discrimination in the workplace. These Protected Characteristics are:
- Sexual orientation
- Marriage status
- Race, colour, nationality, ethnic or national origin
- Religion, belief, or lack thereof
- Being transsexual or transgender
- Being pregnant or on maternity leave
Employees are also protected from discrimination by association. This covers friends and relatives, and others that might have complained about discrimination and risked being victimised themselves.
What is the difference between direct and indirect discrimination?
There are two main types of discrimination in the workplace.
Direct discrimination covers circumstances where someone is deliberately mistreated, bullied or treated differently because of any protected characteristics.
Indirect discrimination covers circumstances where an employee is treated the same as everybody else, but the effect on them is worse because of a protected characteristic. For example, an employer might have a policy against headwear which could affect people of certain religions.
What happens if an employee believes that they’ve been discriminated against?
If an employee believes that they’ve been the victim of indirect discrimination, then it’s up to the employer to prove that they had a valid business reason for their actions. They need to show that they considered the impact on the employee, and anyone else with similar characteristics.
Under the Equality Act 2010, a valid business reason is known as a legitimate aim. Unless the employer can prove that there were no less discriminatory ways to achieve their legitimate aim, their defence might be rejected.
Reasonable adjustments in the workplace:
An employer might be discriminating if they don’t provide reasonable adjustments, to help disabled employees to work on equal footing with their colleagues.
What’s needed to level the playing field will vary from person to person, and it’s an employer’s duty under the Equality Act to make the required adjustments.
Examples of reasonable adjustments might include specific equipment, the addition of ramps to the building, widened doorways for access, clear written instructions in place of usual verbal instructions, or allowing extra breaks.
Reasonable adjustments for one business might not be reasonable at another – practicality and cost (based on the available resources of the employer) should be taken into account.
The term ‘positive action’ refers to a voluntary act to help people with protected characteristics. It’s something that can be done legally, if people have particular needs, are at a disadvantage or are under-represented in the workplace.
Examples of potential positive action include:
- Holding a recruitment day specifically for people with disabilities, to introduce them to the company and the roles that are open for applications.
- Guaranteeing an interview to all disabled candidates that meet minimum job requirements.
- Offering a work placement for people within a certain age group.
- Reserving places on a training course specifically for people of a specific faith or ethnic origin, if they’re under-represented.
When a person with a protected characteristic applies for a job, this can be taken into account during the recruitment process. It should only become a factor if they’re against another candidate of equal quality and qualification.
How can discrimination at work be dealt with?
If an employee feels that they’ve been the victim of discrimination in the workplace, the first step is to ensure that the discrimination is covered under the Equality Act 2010. In order for this to be the case, the employee needs to have been discriminated against based on a protected characteristic.
The following plan of action should then be followed:
The employee should approach their employer, or their manager, to discuss the discrimination that they’ve experienced. Ideally, the employer will make efforts to improve the situation as soon as they’re made aware. It might be that a manager or employer is unaware that what they’re doing is discriminatory, in which case them being made aware could be all that it takes.
If an employee has spoken with their employer, only to find that nothing has changed or that the employer’s reacted badly, then mediation could be the next reasonable step. Acas can help with mediation services. Employers can also contact Acas if they feel that an employee is being unreasonable.
If informal action doesn’t resolve the issue of discrimination, the next step is to move on to formal action. Employees should submit written complaints that can be kept on record. An employee might also want to submit a complaint to the Equality and Human Rights Commission.
Conciliation and employment tribunals
Following a formal complaint, Acas should be contacted. The employee MUST inform Acas that they intend to go to an employment tribunal. Acas will offer Early Conciliation, in an attempt to resolve the situation and reach an agreement or a settlement.
If Early Conciliation doesn’t work, or if the employee rejects the offer to go ahead with the process, Acas will issue a certificate. Using this certificate, an employee can make an employment tribunal claim.
An impartial mediator may run judicial mediation, to attempt to resolve the issues as a final step before the employment tribunal.
At any point in the process, the employee and employer can come to an informal agreement. This isn’t legally binding. The employee can still go further and make an employment tribunal claim, if the informal resolution isn’t followed up with action or if it’s simply not a good enough offer.
Formal agreements, which happen during conciliation, are legally binding settlements. This will be a financial offer to avoid an employment tribunal, but may include other things such as a reference for future employment. A settlement agreement will be written out, and all parties must seek a solicitor’s advice before the agreement is legally binding.
A final note:
Employees need to act quickly if they feel that they’ve been victims of workplace discrimination. They must go to the employment tribunal within 3 months of the discrimination taking place.
Informal negotiations don’t slow this process down, but Early Conciliation will.