Discrimination in the workplace, is, despite the huge steps we have made in recent decades still all too common. We have to acknowledge that discrimination still blights our workplaces and restricts the potential of many of our workers, which in turn means that our organisations are failing to capture and capitalise on the wealth of talent available from a diverse and multicultural workforce.
Discrimination can have a devastating impact on an employee’s career trajectory as well as their self-esteem and overall wellbeing, as well impacting on the overall morale of the wider workforce.
Discrimination can be a very costly mistake by an employer. Not only because a successful claim by a worker is uncapped in financial terms but also because of the reputational damage to the organisation.
Employers must be aware of what constitutes discrimination, not only because their staff deserve to be treated fairly, equally and with dignity and respect, but also because they could be acting unlawfully.
What is discrimination?
Discrimination in the workplace is based on certain prejudices and bias and occurs when an employee is treated unfavourably because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
If any employer treats someone less favourably because they possess a protected characteristic they could be acting unlawfully.
Direct discrimination occurs when someone is treated less favourably than other employees. For example, the employee has the qualifications to do a job but the employer rejects them because it does not want to employ someone who is, for example, disabled; about to start a family or from an ethnic group that the employer has a bias against.
Direct discrimination can also occur when an employer pays someone less than other employees for no good reason, selects someone for redundancy because of a protected characteristic, or because an employer does not make reasonable adjustments for a disabled worker. Other examples are that an employer dismisses someone for making allegations of discrimination or if they unfairly and unreasonably reject a request for flexible working from a new parent.
Indirect discrimination occurs when certain policies, practices or rules put certain staff members at a disadvantage. For example, if an employer insists that all workers should work Sundays, this could be seen as discriminating against those who consider it a day of rest and worship.
An employee may also consider that they have been harassed on the grounds of their protected characteristic or that they have been victimised for having made a complaint.
The Equality Act 2010 and protected characteristics
The Equality Act 2010 consolidated several pieces of discrimination legislation under one Act and strengthened and expanded upon the laws around discrimination.
The Act refers to, nine protected characteristics:
- Gender Reassignment
- Sexual orientation
- Religion or belief
- Marriage and partnership
- Pregnancy and maternity
If an employer discriminates against an employee on one of these grounds, then they can make a complaint against the employer as well as the person who discriminated against them.
What can you do if you believe you have been discriminated against or that one of your team are discriminating against another staff member?
- Complain informally to your employer, or if you are the employer deal with the complaint informally, if appropriate.
- Raise a grievance using your employer’s grievance procedures, or if you are the employer deal with the matter using the disciplinary procedure in relation to the person alleged to have discriminated and deal sensitively and professionally with any grievance raised by an employee.
- Try and resolve the matter using the mandatory ACAS Conciliation process
- If you are an employee make a claim to the Employment Tribunal and if you are an employer respond to any allegations made against your organisation.
Employees must be aware that if they do decide to make a claim to the Employment Tribunal, they need to tell them about their claim (by filling in a form) within three months (less one day) of what happened (or six months in equal pay claims). This period is extended by the mandatory ACAS conciliation process. The first step is to notify ACAS which effectively “stops the clock” running on the limitation period. It is essential to take advice on when the limitation period expires in each case and to ensure that ACAS has been notified before a claim can submitted to the tribunals.
An employee does not have to go to their employer before making a claim to the Employment Tribunal, but there are two good reasons for doing this:
- Making a claim will be demanding on your time, finances (if you instruct a solicitor) and emotions, health and wellbeing, so before starting the process an employee may want to look at whether or not they have a good chance of success. We can advise you on the merit and value of your claims. An employee may also want to see if there are better ways of sorting out their complaint, such as mediation. An employee should think carefully about whether making a claim to the Employment Tribunal is the right thing for them personally. Commitment is essential to the process as it can take several months to complete.
- If an employee does not use their employer’s grievance procedures to solve a problem before they make a claim to the Employment Tribunal, and they win their case, the Tribunal can reduce the amount of money it instructs the employer to pay the employee by up to a quarter if it thinks the employee acted unreasonably.
Do not forget that even if an employee tries to sort the matter out with their employer first, formally or informally, they must keep to the Tribunal time limits if they want to bring an Employment Tribunal case. In order to keep within the time limit, an employee may have to start a case before they have completed the internal process with their employer. For employers therefore it is crucial that they deal with complaints promptly and as quickly as possible, whilst always ensuring that a thorough and fair process has been conducted.