Don't pay for discrimination

Adam Bernstein discovers how respect pays

Published:  03 January, 2017

An allegation of discrimination in the workplace can create significant problems for employers and, while the total overall number of employment tribunal claims are falling, employers continue to face discrimination complaints on a regular basis.

In February 2016, for example, it was reported that a Starbucks worker, Meseret Kumulchew, had won her dyslexia discrimination case after making mistakes due to her difficulties with reading, writing and telling the time. And in July 2016 Myck Djurberg, the owner of the Hampton Riviera Marina & Boatyard, stood accused of abusing his "power and control" to grope young apprentices working at his boatyard. He faced trial at Kingston upon Thames Crown Court on four counts of sexual assault but was found not guilty.

SH: Garage examples

But while these cases involve other sectors, the motor trade is not exempted. Consider the 2011 case of Cromwell Garage Ltd v Doran where a forecourt manager told her employer she was pregnant and from that point on the managing director made a number of comments that ultimately led to an unfair dismissal and direct discrimination claim where the garage lost on appeal. Even the governments Code of Practice on Equal Pay* uses the example of a woman working in a garage as an office manager claiming "equal value with a male garage mechanic."

Getting discrimination issues wrong can create significant problems reckons Mark Stevens, a solicitor at Veale Wasbrough Vizards, who also notes that defending an Employment Tribunal claim, let alone a criminal court case, 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."

A couple of cases illustrate the risk well. 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. Williams won and was awarded £560,000 to cover loss of earnings, loss of pension contribution and injury to personal feelings. And in late 2015, in the case of Waddingham v 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.

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."

SH: Types of discrimination

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 says Stevens. "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 (with the exception of direct discrimination on the grounds of age).

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. And this is where Stevens 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.

SH: Perception rules

And 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," says Stevens, "is that the perpetrator's intention is irrelevant and the victim's perception of the way that they have been treated is important. Whilst the perpetrator may consider their conduct to merely be 'banter' - for instance teasing someone about their national origins or a religious belief - this will not be a viable defence to a discrimination claim. One-off incidents can amount to harassment. The victim does not need to have told the perpetrator that the conduct was unwanted."

Employers should also 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 says 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." So taking the RAF case above, where an employee complains that they have suffered from harassment on the grounds of their sex and, having made that complaint, is subsequently passed over for promotion, that employee could argue that they have suffered from victimisation.

Lastly, employers can be caught out by the positive duty to make reasonable adjustments for disabled employees.

SH: Preventative measures

The advice from Stevens is to put in place - and follow - an equal opportunities policy. "The policy, says Stevens, "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 Stevens' 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 Stevens 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 will be required to publish certain information about the pay that its employees receive. This includes information about the overall gender pay gap figures calculated using both the mean and median average hourly pay, information about pay bands and bonus pay across its business. It'll be interesting to see how this affects pay in the smaller business.

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