Discrimination in the Workplace
We go to work to earn money to sustain our lifestyles. For most of us this is an enjoyable social experience that as well as providing income. For some however, the daily journey in to work is filled with dread because they are being mis-treated by their fellow workers.
Discrimination in the workplace covers many different situations, from being harassed by fellow employees or being treated less favourably by an employer, and unfortunately many people experience workplace discrimination on a daily basis.
Up until 2010 people were protected by a number of different anti-discrimination laws but now all discrimination offences are found in one place; The Equality Act 2010. For anyone who thinks that they are being subjected to discrimination in the workplace, this act is the starting point.
What is discrimination?
A person is discriminated against if they are treated less favourably by their employer or their work colleagues. To be classed as discrimination this less favourable treatment must be related to a particular characteristic they have. The Equality Act sets out the characteristics that discrimination relates to. These are known as ‘protected characteristics’.
The protected characteristics are:
- Gender Reassignment
- Marriage & Civil Partnership
- Pregnancy & Maternity
- Race (which includes national origin)
- Religion or Belief
- Sexual Orientation
Discrimination applies only to these 9 characteristics. Any other reason for unwanted treatment will not be classed as discrimination and will not fall under this act (although it may constitute another offence).
There four different acts of discrimination that are defined in the Equality Act, these are:
- Direct Discrimination – treating someone less favourably because of their protected characteristic
- Indirect Discrimination – putting a rule in place that applies to everybody but unfairly disadvantages someone with a protected characteristic
- Harassment – unwanted behaviour towards someone with a protected characteristic that violates their dignity or creates a hostile work environment
- Victimisation – treating someone less favourably because they have made a complaint about discrimination
Discriminatory acts can arise in many ways and the Equality Act protects an employee from recruitment through to termination of their employment. This means an employer could be liable for discrimination if they refuse to offer a person a job or dismiss them because they have a protected characteristic.
The majority of discrimination situations occur during a person’s employment. This could be an employer treating an employee badly because of their protected characteristic, for example paying them less, not giving them promotions or just treating them badly at work. Discrimination can also occur if a person is being harassed by their fellow employees because of a protected characteristic they have. In this situation their colleague will be liable for discrimination as well as the employer who is liable for their employees’ actions. All forms of discrimination are unlawful and any victim is entitled to make a claim against their employer for being discriminated against.
What to do if you are being discriminated against?
It is vital that a person who is being discriminated against compiles as much evidence as possible. This could include the following:
- Making a note of when an incident happens, where it happened and who was involved
- Writing down their account of the discrimination shortly after it happened
- Making a note of any witnesses to the discriminatory act
- Making a note of any similar incidents that have happened to other employees
The first thing a victim of discrimination should do is report the incident to their manager or employer. If it is their manager or employer who is committing the discrimination, which is quite often the case, then an employee should make a complaint through their Human Resources department or use the usual complaints procedure for their workplace.
A grievance procedure will normally be held to try and resolve the issue. It is important that all the internal mechanisms of resolving a complaint within the company are used as a tribunal may not be sympathetic to a claimant who has not exhausted these means before making a claim. It may also be beneficial as it could resolve all issues of workplace discrimination without resorting to a hearing at the Employment Tribunal which comes with its own costs, both financial and emotional.
If these grievance procedures fail to resolve the issues and the discrimination continues then the victim may consider taking the matter further. If an employee wants to bring a discrimination claim they must comply with the tribunal requirements. All claims must be brought within 3 months of the alleged discriminatory act. This time limit is strictly imposed. Where there are a series of incidents, usually the last incident is the one that acts as the date of discrimination.
In terms of procedure, firstly the Claimant must contact ACAS (Advisory, Conciliation and Arbitration Service) before they can make an application to the Employment Tribunal. ACAS is a neutral organisation that will try to help an employer and their employee reach a resolution through arbitration and mediation. Sometimes ACAS may be successful at helping the parties reach a decision and the matter will be resolved. Sometimes ACAS is not successful, and the case will proceed to a hearing. The time taken to undergo the ACAS process effectively ‘stops the clock’ and will not count towards the 3-month time limit.
If ACAS is unsuccessful the potential claimant will make an application to the Employment tribunal. The Tribunal Office will examine the content of the claim and consider whether it can be accepted. If the claim is accepted, it will be sent to the employer who will have 28 days to respond to the claim against them. Once the employer has responded there may be some preliminary hearings to see if the claim can be settled and to determine any issues. If these are unsuccessful then the case will proceed to a full hearing where live evidence is given.
At the final hearing each party will be given a chance to put forward their argument and evidence. These hearings tend to be lengthy since all evidence is given in person. Typically event the most straightforward hearing will take over a day and sometimes several days or weeks depending upon the complexities of the case and number of witnesses called. The Tribunal may give a decision straight away or may reserve its decision to issue in writing later. If the employer’s acts are found to be discriminatory then the Tribunal will order the employer to pay the employee an amount of damages that they believe to be reasonable.
Workplace discrimination is experienced by many people every day and the Equality Act 2010 is in place to try and help those who are suffering. For anyone who feels that they may be subject to discrimination and wish to explore their options, ACAS councillors will provide confidential advice to them and will help them to try and resolve their workplace problems.