Discrimination in the workplace: what you need to be aware of

discrimination in the workplace

A longer HR Blast than normal but Discrimination claims are rife and it’s a complex subject…

Do you keep up to date with the changes in the news? With so much going on, both in the UK and Internationally, it’s hard to know which bits are the most important and relevant for HR. To give you a helping hand, we have rounded up the most important news relating to discrimination in the workplace.

Discrimination headlines: religion 

Discrimination is continuing to make headlines, with the most recent high-profile case being a locum GP who asked a Muslim woman to remove her veil so that he could hear her better.

In this particular case, the woman was talking about the symptoms and ailments of her daughter, and the GP was struggling to hear what she was saying. As such, he asked her to take off her niqab so that he could hear her better. The GP claims that she did so without comment, but later the lady’s husband complained to his supervisors alleging discrimination, and the GP practice subsequently reported the incident to the GMC (General Medical Council).

The GMC is now investigating the case in which the mother was alleged to have been left crying, feeling victimised and racially discriminated against. She said that the Doctor gave her a ‘dirty look’ and said that he wouldn’t continue the consultation if she didn’t remove the niqab. These are allegations which the GP denies.

The GP, who has been practising for 23 years and is now at risk of being struck off, is currently unable to work as he’s a locum and no medical practice will employ individuals whilst they are under investigation.

Surely one guiding principle of our justice system is that the employer’s response has to be reasonable and no one can be denied the right to earn a living? How does this principle relate to GIG economy workers such as this doctor?

The GIG economy is catching up far too slowly with modern working practices and someone needs to really switch up a gear to ensure that all workers in the UK are treated fairly and in line with our guiding principles.

Questions to ask here might include:

When it is one person’s word against another, how is the decision made?

In reality this usually comes down to who is more believable. Or, in some cases sadly, what the most PC decision is given media scrutiny. No doubt we will have a long wait to hear the outcome of this investigation, during which time the medical profession may lose a valued and experienced doctor.

Should a complaint brought by a relative be taken as seriously as a complaint brought by the individual themselves? (In this case the woman made no complaint but at a later point her husband brought a complaint on her behalf – a lay person might ask whether this was because he was the one who was offended rather than because she had been offended?)

In employment law terms, we would always advise you work with the employee themselves, however, someone who raises a complaint on their behalf could be aggrieved by association. If a complaint is made, it is important to speak to the individual directly but just as important to take a statement from the complainant if that is someone different.

Always be aware of your employee’s sensitivities but also have your wits about you if you have someone else who might be creating conflict where none previously existed. The better relationship you have with your employees the better you will be able to resolve this amicably. Also, always resist the employee who tries to avoid any kind of communication with you, instead trying to divert communications via a relative. This seldom ends well or quickly!

Can you ask someone to remove their niqab during an interview, at work, or at any other time?

Not surprisingly there are many different views on the niqab. However, it is in fact irrelevant whether it is being worn for religious or traditional reasons as the reality is that many women asked to remove their niqab may feel vulnerable or uncomfortable or offended or distressed. The best advice we can give is if there are H&S or security (genuine) reasons then it is okay to ask someone to remove their veil. If you do so though, always ask if they would like a female present and be prepared to ask all men to leave the room while this is done.

Discrimination headlines: disability

Mrs Kumulchew won a case of discrimination after Starbucks, despite knowing that the employee had dyslexia, failed to make adjustments. Mrs Kumulchew had the job of taking temperature readings although her dyslexia meant that she struggled with reading, writing and telling the time. As a result, she made various mistakes, and was accused of deliberately falsifying documents, which then resulted in her being given lesser duties.

The Tribunal found that Starbucks had failed to make reasonable adjustments and had discriminated against her because of the effects of her dyslexia.

Questions to ask here might include:

With cases like this in the press, we would encourage you to ask some of these questions about your own team/organisation:

Do your managers have enough knowledge to know what questions they can and should be asking about disabilities and/or reasonable adjustments?

How do you ensure people don’t discriminate or fail to act? (E.g. in seeking to make reasonable adjustments as a result of their own biases in relation to health, wellbeing, abilities etc).

Who makes the decision about whether an adjustment requested or identified is reasonable?

It is always difficult in a working environment where only a few people work to ensure that someone of the appropriate seniority and with the necessary knowledge is available to make a decision. But the law requires adjustments to be made, so lack of knowledge or lack of decision makers is not an excuse in the eyes of the law.

If you’re wondering whether an ‘adjustment’ has to be made once identified, here are some things you need to consider:

  • Is the adjustment practical to make?
  • Does the employer have the resources to pay for it?
  • Will the adjustment be effective in overcoming or reducing the disadvantage in the workplace?
  • Will the adjustment have an adverse impact on the health & safety of others?

The expectations of Tribunals around adjustments will vary according to the size of the employer but if in doubt, just double check with a peer or senior manager that your decision to refuse an adjustment is appropriate and within the spirit of the law and you’ll need to evidence your decision making.

Discrimination headlines: sexual orientation

Mr Aplin won a case of constructive dismissal and sexual orientation discrimination against Tywyn Primary School. Mr Aplin was a 42 year old headteacher at a primary school, he met two 17 year old boys on a social networking site and had sex with them. The incident came to the attention of the police and social services who investigated and concluded that no criminal offence had been committed and there were no child protection issues.

However, the school began its own investigation, which subsequently led to a disciplinary and a disciplinary appeal.

The Tribunal heavily criticised the school and found that the procedural failings were so bad that he had been constructively dismissed and from which they could infer sexual orientation discrimination.

Questions to ask here might include:

  • Did the School’s risk aversion and fear of criticism drive it to make assumptions, cut corners and pre-ordain the outcome which the Tribunal then criticised?
  • How often are our behaviours driven by fears and risk aversion and how fair is that in the eyes of the law when people’s lives are affected?
  • Who advised the school in such a way that its procedural failings were so strongly criticised?

Discrimination headlines: pregnancy

When we look into this next case it’s difficult not to assume that the recent government announcement to extend the legal protection against redundancy for pregnant women would have enraged the Essex-based asbestos removal specialist Arco Environmental even further.

So, this case isn’t about redundancy but the biases the firm displayed against Mrs Walker during the first few weeks of her employment. Mrs walker worked for Arco from 3rd November to 13th December 2013. On the third of week of employment she told her employer that she was pregnant. Mrs Walker quit and filed a constructive unfair dismissal claim and won on unfair dismissal and discrimination.

The court heard that the attitude of directors, a married couple Mr & Mrs Rees, towards Mrs Walker changed once they knew she was pregnant as she stated ‘it was clear neither of them wanted to talk to me’. Mrs Walker’s unfavourable treatment continued when she met with her then manager, Mr Grant. Mr Grant conceded to the tribunal that during a meeting with her he asked her to ‘tread carefully’ around Mr Rees because he was ‘fed up’ that Mrs Walker was pregnant so soon into a new job. Then suggested that Mrs Walker took the job with the knowledge that she was pregnant and that she would benefit from maternity rights. This clearly upset Mrs Walker and believed that further poor treatment would follow so she quit.

What is upsetting in this case is not only the way a person was treated but that for some people pregnancy is a once in a life time opportunity. Her excitement was soon put to bed when starting with Arco Environmental.

The judge in this case ruled that the two-year qualifying period did not apply as the reason for the employee’s constructive dismissal was pregnancy. This is because pregnancy is an automatic reason for unfair dismissal set out in the Employment Rights Act 1996 and so the two-year rule is ‘trumped’. If you need further info on this read our article on dismissing staff with short service.

Whilst it may be difficult for small businesses to manage the workforce and payroll when dealing with pregnant women, it is fundamental that employers get it right. They must not:

  • be subjected to unfair treatment because of pregnancy or maternity;
  • suffer disadvantage because of pregnancy or maternity through the employer’s policies, procedures, rules or practices;
  • suffer unwanted behaviour because of pregnancy or maternity.

In the same way an employee must not suffer as a result of being pregnant, in this case the law terms this as ‘detriment’, things like:

  • making an allegation of discrimination;
  • supporting a complaint of discrimination;
  • giving evidence relating to a complaint about discrimination;
  • raising a grievance concerning equality or discrimination;
  • doing anything else for the purposes of (or in connection with) the Equality Act, such as bringing an employment tribunal claim of discrimination.

In this case, The Tribunal commented that “the managers did not know what the firm’s statutory obligations were”. In this day and age, whilst we can sympathise, it is clearly inexcusable not to have managers have at least some basic understand of Employment Law and knowing what the ‘red flags’ are.

Discrimination headlines: equality discrimination

Can you be too white, too male and too educated to be a police officer?

Turns out you can as Mr Furlong, a young, white heterosexual man found out when he was rejected for a role in the police force!

Matthew a 25-year-old with a degree in physics filed a discrimination claim against Cheshire Police for equality discrimination and won.

Amongst 34 other white males who were rejected this young man was ‘refreshingly well-prepared’ for his interview and then rejected six days later. What’s striking about this case is that all of the candidates that are black were offered a job.

Was this because the force had set the pass grade ‘artificially low’? This is what the judge put forward in addition to allowing only a pass or fail, meaning that all results were ‘equal’ when in reality this was far from the truth.

It feels that we are putting the health and safety in the hands of a police force who are comfortable lowering test criteria to increase their Black, Asian, and Minority Ethnic (BAME) stats. In reality this is what has happened and it just doesn’t feel right to know the lengths some organisations will go to.

Has this just unearthed the wider argument that if we are to be honest with ourselves, there are more white privileged people in the UK who just expect to be hired for that dream job. When in reality there are forces at play that dictate whether we are indeed ‘the right fit’ and that some organisations will always cherry pick what they believe ‘fits’ into their culture.

A brief look at whether our diversity & inclusion leaders are leading or simply following their own agendas?

It was shocking for many of us to read a few months ago about a black NHS racial equality boss who lost her £100K job after allegedly telling a colleague that he was ‘everything she despised in a white manager’. This case hit the press after she lost her claim of unfair dismissal at the Employment Tribunal.

Media reports suggested that the year long investigation prior to her dismissal found that she had also bullied and victimised another employee over their sexual orientation.

It’s great to promote your own race and seek to reduce inequality, but that can never be at the expense of someone else’s dignity of employment rights.

At Jaluch we also often get to talk to those who view themselves as leaders in respect of D&I but we struggle when organisations silo different groups of employees and then seek to promote them, without consideration for other groups. That’s so dangerous.

For example:

  • How can you promote equality across the board when your only passion in life is supporting and promoting transgender issues?
  • How can you promote equality across the board when your only passion is to support women who have been sexually harassed in the workplace?
  • How can you promote equality when your passion in life is to raise the profile of older workers and ensure that their needs and interests are met?

It’s hard to appoint a D&I lead who is a passionate all-rounder, but it’s essential if the organisation’s approach to equality and fairness is to be joined up and viewed as fair to all.

We can all get passionate about our beliefs, but in business no one can afford to allow their personal passions to overshadow common sense or common decency. Inclusion, if it is to be achieved, has got to be about including everyone, not just a favoured few!

Food for thought…

  • Perhaps some of those who appoint D&I leads could be a little more testing of their ‘credentials’ and explore some of their biases and prejudices before putting the job offer in writing?
  • It has been a mistaken belief for some time that anyone who has one protected characteristic (e.g. race, religion, sexual orientation, pregnancy etc) will make a good advocate for all people with protected characteristics (the Equality Act sets out 9 of these).  What nonsense is that? (Great reading on this in Filter Shift by Sara Taylor)
  • Even D&I leads have biases. Anyone who tells you differently is quite simply wrong. Our biases though are morality neutral so it’s not all negative news…and biases are not reserved just for the uneducated or ill informed. We all have them, like it or not. You will be hard pressed to find an academic, teacher, leader who doesn’t have as many biases as their neighbour…we grow up with them, we learn them as we forge our way in the world, simply choosing to holiday in France rather than Scotland or Africa rather than the US can indicate our biases and preferences. But no judgement has to be attached. What is key though is that we recognise our own biases and learn to manage them in the workplace.

What can we do?

These cases undoubtedly demonstrate the importance of ensuring that we are all aware of not just discrimination, but diversity and inclusion issues and best practice. This is an area which is changing all the time, and one that we cannot afford to be complacent about as employers, employee’s behaviour is of course our responsibility (whilst they are at work anyway) and as such we have vicarious liability.

To help get you thinking about what you can practically do to protect your Company, we have jotted down some suggestions to get you thinking:

  • Our MD Helen Jamieson would be delighted to deliver a seminar to your networking group on Inclusion and Engagement – let’s stop being so linear, tackling one problem at a time and let’s look at Inclusion within the context of Engagement that drives both recruitment and retention in businesses.
  • Consider Diversity and Inclusion awareness and training/Unconscious Bias training/Gender intelligence training for all employees (and suppliers as appropriate);
  • Ensure that your Diversity and Inclusion policy is up to date and reflects best practice and is both widely circulated to and widely understood by all your employees and managers.
  • Review your recruitment practices, are they sufficiently objective (and in a way that can be demonstrated?) What actions can you take to make improvements? Do the individuals involved in conducting these procedures do with training/refresher training?
  • Are you aware of the diversity of your workforce, if not consider whether this is data that you want to collect and how you would actively use it if you did? Do you have any goals or targets when it comes to Diversity and Inclusion?
  • Consider whether your investigation/disciplinary/grievance procedures are sufficiently objective, how can they be improved? Do the individuals involved in conducting these procedures need training/refresher training? Does Unconscious Bias ever slip in meaning that certain individuals are pre-judged before they even attend, whilst others are yet again given a ‘free pass’?

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The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.

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