With Suarez punished, Terry soon to be judged, and Diane Abbott in trouble for tweeting, racism is once again a big headline story. But how should employers deal with racism or any other form of discrimination which occurs in the workplace?
Discrimination in any form is clearly unacceptable but blatant acts of discrimination are thankfully rare. Having said that, we see large numbers of clients who tell us about the difficulties of dealing with “banter” or jokes which some might consider to be offensive?
It might sound obvious but ignoring this is not an option. This is not just about reputational damage (who wants to be known or labelled as an employer who tolerates discrimination) but the recent case of Browne v Central Manchester University NHS Foundation in which Mr Browne was awarded more than £900,000 in compensation is an example of just how costly discrimination claims can be.
Most cases don’t result in these mega awards but, if the employer is found to have discriminated against a member of staff, compensation can be awarded for injury to feelings, personal injury and aggravated damages in additional to financial loss with no limit on the amount of compensation that can be awarded.
Sadly, I am sure that we can all point to examples of people treating each other badly but employers sometimes query how they can identify when discrimination has occurred. The Equality Act 2010 lists four types of discrimination: direct; indirect; harassment; and victimization. The Act also makes it clear that, even if the behaviour in question could fall into one of these categories of discrimination, the actions will only be unlawful if the steps have been taken (or not taken) because the employee has or shares a protected characteristic. Or is “associated with” someone with such a protected characteristic.
The characteristics which are protected are well known: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
Thankfully, it is rare for an employer to deliberately single someone out because he or she has one of these protected characteristics. The main issue for employers is that when it does happen it is usually hidden or unreported. Worse, it might even be excused as workplace “banter”. Unfortunately for the employer though, any joke or comment which highlights or makes references to a protected characteristic is potentially discrimination.
To give a crude example, it is not discrimination to tell a colleague that they are getting fat but it could be discrimination to tell them that they are getting old and fat because the comment suggests that an employee is being treated less favourably because of a protected characteristic – in this case his or her age. Be careful though, to call someone “fat” could be bullying.
Indirect discrimination is a little more difficult to spot because it involves the use of an apparently neutral provision, criterion or practice (PCP) which puts those who share a particular protected characteristic at a disadvantage when compared to others outside the group. For an employee to bring a claim of indirect discrimination, he or she must have suffered a disadvantage because the PCP was applied to the protected group and, unlike claims for direct discrimination, indirect discrimination can be “excused” if the employer is able to show that its PCP is objectively justified (i.e. that it is a proportionate means of achieving a legitimate aim).
Harassment and victimisation are the most commonly cited acts of discrimination in the grievances that I see but the claims are rare in practice because of the strict legal definitions which are given to both terms.
Harassment involves unwanted conduct which is related to a protected characteristic and that has the purpose or effect of violating a person's dignity or creating an offensive, intimidating or hostile environment.
Victimisation involves treating a person less favourably because they have complained (or intend to complain) about discrimination, or because they have given evidence in relation to another person's complaint.
Despite the relatively strict criteria for bring a discrimination claim, as the government makes it harder to bring unfair dismissal claims, discrimination claims are likely to become more common. This is partly because discrimination can arise from a single comment or act. The employee doesn’t need to prove a whole series of incidences but clearly the more often someone is subjected to the unlawful behaviour, the more likely it is that a claim for discrimination would be successful.
Everyone has a friend who sometimes uses language or behaves in a way that they personally do not consider appropriate. Most of us in that position never say anything – we just turn a blind eye because the friend “doesn’t normally say / do things like that”. The problem, in a work context, is that someone might come along who isn’t prepared to overlook the language or the behaviour and, if it is discriminatory, why should they?
As taping your employees’ mouths shut is not recommended, what can be done? Well, first and foremost, employers must have policies and procedures in place making it clear that discrimination will not be tolerated. There must also be clear channels for reporting problems such as a grievance procedure and any issues reported must be investigated seriously with a view to disciplinary action being taking if the investigations reveal that such action might be warranted.
Employers also need to encourage managers who observe such behaviour to act upon it rather than waiting for the complaint to come in - having a policy in place is no defence if you do no more than pay lip service to it. With this in mind, providing training on what is and what is not appropriate is often a good idea.
The only entirely safe course of action is to encourage a joke free workplace. Boring and unrealistic? Perhaps but leaving it to common sense is dangerous because any comment however innocently meant which distinguishes one person from another on the basis of a characteristic that that person has, whether a protected characteristic or not, could be a risk. Even if the comment isn’t grounds for a discrimination claim, an employee may be able to argue that it is bullying and has led to a breakdown in the relationship of trust and confidence.
So, whilst it might not be unlawful for people to mock me for being so short that I cannot reach to put the angel on the top of my Christmas tree, if I were to take offence then I might still think about a constructive unfair dismissal claim.
About the author
Joanne Stronach is a Partner in the Employment & HR team.