The world has moved on from the Bristol Boycott of 1963, where the Bristol Omnibus Company refused to employ black or Asian bus crews in the city of Bristol. Or at least it should have done. However, a quick search of the web shows that discrimination of staff or by staff to the public they serve is still commonplace.
Take the 2015 of Mr Thompson, a bus driver for London Central Bus Company Ltd, who brought a claim for victimisation under the Equality Act because he was dismissed following an incident in which he gave his high-visibility vest to another employee. His claim eventually won even though the incident involved a colleague. Now an individual can bring an ‘associated’ victimisation claim on the basis that he suffered as a result of another carrying out a protected act.
Even the RMT Busworkers’ Handbook recognises that sector may have an issue as it offers guidance on discrimination and Employment Tribunals.[wlm_nonmember][…]
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The costs
An allegation of discrimination in the workplace can create significant problems for employers and getting discrimination issues wrong can have the same effect reckons Mark Stevens, a Solicitor at Veale Wasbrough Vizards, who notes that defending an Employment Tribunal claim can be time consuming and expensive: “Discrimination claims can seriously damage an employer’s reputation. Not only that, but in the event that a discrimination claim succeeds there is no cap on the amount of compensation that can be awarded.”
He outlines a number of recent cases in other business sectors that illustrate the risk and likely awards: “In 2014 Group Captain Wendy Williams was passed over for promotion in favour of a male colleague who had served three-and-a-half years fewer than her. She took the Ministry of Defence to an employment tribunal accusing the RAF of favouring men. Wendy won and was awarded £560,000 to cover loss of earnings, loss of pension contribution and injury to personal feelings. In late 2015, in Waddingham vs. NHS Business Services Authority, the employment tribunal held that an NHS trust committed disability discrimination against an employee having cancer treatment who was required to undergo a competitive interview process during a redeployment exercise. The employee was awarded £115,000. And more recently, in August 2017, London’s Evening Standard reported on the case of a former BAE Systems Secretary who received £360,000 following a claim for discrimination after a manager made a sexist remark. She took sick leave from the security company after being “bullied and harassed, including sexually” by her supervisor while working on an RAF project. She was later dismissed from her £22,000 a year job which led to the tribunal claim.
On top of these awards come the costs of defending a case. “Clearly every situation will differ and it is by the nature of the beast that it can be hard to gain a real understanding of costs, but a CIPD report in August 2015 noted the numbers that were gleaned following a Freedom of Information request served by the British Chambers of Commerce (BCC) on Avon and Somerset Police,” said Mark. “The response to the request found that the force had spent, on one case alone, more than £63,000 dealing with an employment tribunal brought by three officers, only for the accusations to be dropped less than a week into the six-week hearing.” The accusations involved claims of harassment, victimisation and sex discrimination. The BCC believes that the average cost to employers of defending an employment tribunal is around £8,500.
Claims can therefore prove very expensive in monetary terms and also the management time spent defending a claim.
Types of discrimination
It surprises many to know that discrimination law covers a wide range of individuals including job applicants, agency workers, employees and contractors. Even former employees are protected. Further, Stevens warns that employers can be found to be vicariously liable for the discriminatory actions of their employees – “meaning that they could be found to be responsible for their employees’ discriminatory conduct.
Workers are protected against suffering discrimination in relation to a number of different protected characteristics – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
There are different types of discrimination that employers should be aware of, Mark said. “The first, direct discrimination, occurs when a worker is treated less favourably than others because of a protected characteristic. An example would be where a female employee is overlooked for promotion because she is a woman – the RAF case above is a perfect example of this.” He expands by explaining that unlike some other types of discrimination, direct discrimination cannot be objectively justified. This means that, generally, employers cannot argue there was a legitimate reason behind the decision to treat a worker differently because of their particular protected characteristic.
The second type of discrimination – which is often more subtle – is that of indirect discrimination. Indirect discrimination can occur when an employer does something, or puts in place a policy, which has the effect of disadvantaging a particular group of people with one of the protected characteristics noted earlier.
This is where Mark highlights the big problem here – it can occur without the employer intending to treat anyone less favourably: “Let’s say an employer introduces a bonus that is payable to only those employees who work full-time and who have 100% attendance.
“This could be indirectly discriminatory towards its female employees as, statistically, women are more likely than men to have childcare responsibility and work part-time hours. The requirement that someone has 100% attendance could also disproportionally impact workers with disabilities who may have a higher level of absence.”
The saving grace for employers is that unlike direct discrimination, they can seek to justify indirect discrimination by showing that their actions were a proportionate means of achieving a legitimate aim. This means a careful and written analysis of the business reasons behind the decision or policy – saving costs will, on its own, be unlikely to be accepted as a legitimate aim.
Then there’s harassment; another type of discrimination frequently considered by the Employment Tribunal. It’s defined as unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
“What is interesting here,” said Mark, “is that the perpetrator’s intention is irrelevant and the victim’s perception of the way that they have been treated is important. One-off incidents count and the victim does not need to have told the perpetrator that the conduct was unwanted.” This then, is very dangerous ground for employers.
Employers should note that unwanted conduct of a sexual nature can be caught by harassment protections.
Workers are also protected against suffering victimisation in the workplace which Stevens said can arise in circumstances “where an employee alleges that they have suffered from discrimination and then suffers a determent or less favourable treatment as a result.”
Lastly, employers can be caught out by the positive duty to make reasonable adjustments for disabled employees.
Preventative measures
The advice from Mark is to put in place – and follow – an equal opportunities policy. “The policy,” Mark said, “should seek to ensure that all staff are aware of their obligation not to discriminate and what this means in practice.”
Next, employers should train staff on equality issues. From Mark’ point-of-view, this is important as it allows an employer to argue that it did everything it could do in order stop discrimination from occurring. By extension, employers need to ensure that discriminatory behaviour is not tolerated and is dealt with by appropriate disciplinary action. The last piece of advice from Mark relates to employee communication – “to understand their specific needs arising from the protected characteristics in the workplace.”
It’s worth noting that from October 2016 employers in the private or voluntary sectors with 250 or more employees are now required to publish certain information about the pay that its employees receive. It’ll be interesting to see how this trickles down to pay in smaller business.
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