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Handling Discrimination in the Workplace

1 November 2021

In 2010 the Equality Act was introduced and it was designed to combine all the different discrimination acts into one Act to make it easier to understand and comply with discrimination law in the UK. However, since then there have been many developments and changes, some clarifying others extending what is unlawful discrimination. We thought it’s worthwhile reflecting on where we are now with discrimination law and what can be done to protect individuals as well as their employers from unlawful discrimination claims.

The Equality Act makes it unlawful to discriminate against individuals because of a protected characteristic – those are age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity.  It also creates four defined types of claims – direct and indirect discrimination, harassment and victimisation. An employer may be able to justify their behaviour for indirect discrimination if they can show their treatment was necessary and proportionate. Employees and workers can find themselves personally liable for acts of discrimination which are work related, may occur as claims can be made against individuals as well as the employer.  In order to defend your position as an employer, it is important that you have policies in place and that you have trained your staff.  Refresher training is essential too to ensure staff are reminded of their obligations but are also up to date.  For example, many staff are not aware that vegans are now protected from unlawful discrimination but many are unaware of this. Employment Tribunals are regularly considering discrimination cases and the figures for the first quarter of 2021 show that discrimination claims are increasing. As an example, the number of age discrimination complaints to the Tribunal increased by 74% in 2020, compared with the same period in 2019.

Here are some recent cases from Employment Tribunal which may be of interest to you but also highlight how discrimination law is evolving.
  • In, Hartley v D Hollowell & Sons Limited , an Employment Tribunal considered a claim for unfair dismissal and sex discrimination. Mr Hartley called young female colleagues ‘sweet’, ‘love’, ‘chick’, ‘honey’, and ‘curvy in all the right places’. After an allegation of sexual harassment about his behaviour, Mr Hartley was dismissed and claimed it was unfair and discrimination because he is male. He was unsuccessful with his claim for sex discrimination but due to procedural failings he did succeed with a claim for unfair dismissal. The Employment Tribunal commented that the use of ‘pet names’ is demeaning and infantilising. Employers should be cautious not to allow this type of name calling to take place in the workplace to protect other employees.
  • In, Mrs Thompson v Scancrown Ltd, an Employment Tribunal ruled in favour of a mother who had a flexible working request so that she could work four days a week and finish early to pick her daughter up from nursey. Mrs Thompson was a sales manager who was on maternity leave when she submitted her flexible working request. The Employment Tribunal dismissed the claims for pregnancy and maternity leave discrimination and harassment related to pregnancy and maternity leave however, she was successful with a claim for indirect sex discrimination. The Employment Tribunal awarded Ms Thompson a substantial £184,961.32.
  • In Bayfield and Jenner v Wunderman Thompson (UK) Ltd , two male executives in the advertising industry were successful with discrimination claims in the Employment Tribunal. The employer had published its gender pay gap report for 2017 which indicated that there was an issue with female representation, with most senior creative jobs held by men. The Managing Director wanted to address the lack of diversity and a comment was made that they had ‘vowed to obliterate white middle-class straight people from its creative department.’ The two employees were subsequently made redundant. The Tribunal decided that the men had been dismissed because of their sex and their dismissal was unfair.

Employers can be held legally responsible for an employee’s unlawful discrimination, if the conduct is carried out in the course of employment, so it is important employers are clear about expectations and that employers have taken steps to prevent employees acting unlawfully. Increasingly we are seeing more claims relying on WhatsApp and text messaging as evidence of unlawful discrimination.

The fact the discriminatory conduct takes place on personal mobile devices does not necessarily mean claims cannot be brought against employers and individuals. This all reinforces the need for Employers to implement clear policies and procedures and ensure they are reviewed and kept up to date, with training given and refreshed regularly.
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