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Learning from the mistakes of employers who failed to tackle workplace discrimination

Published 29 March 2022

It seems barely a week goes by without news of an employee winning a claim for discrimination, so why are employers continuing to get it wrong?

It can be a costly mistake for any business to make. Currently there is no cap on the amount of compensation an employment tribunal can award in the event of a successful claim for discrimination.

In the last couple of weeks we have seen reports of a number of employers sanctioned for discrimination:

  • A solicitor sacked after taking leave following cancer treatment was unfairly dismissed. An employment tribunal ruled the claimant did suffer discrimination by being dismissed without consultation or an exploration of possible alternatives [1 cited 29.3.22]

 

  • A Jewish lawyer was awarded a pay out in a religious discrimination case after he was sacked for not attending work during Passover. He was forbidden by his religion from working during the first two days of the Jewish holiday [2 cited 29.3.22]

 

  • A supermarket worker won a discrimination case after being fired for repeatedly harassing female colleagues. The former employee won a case for disability discrimination and unfair dismissal after an employment tribunal heard supermarket bosses had failed to consider that his behaviour was caused by a head injury that he suffered following a car crash [3 cited 29.3.22]

In fairly recent times we have certainly seen the ability of the court to make a substantial award in favour of a claimant subjected to discrimination at work.

In 2020 A bank worker who was run over by a car on her first day in a new job and left disabled was awarded a record £4.7m after she was made to feel ‘worthless’ and ‘unsupported’ by her colleagues [4 cited 29.3.22]

And just last year  a former employee at a multinational engineering, procurement and construction company was awarded £2.5m, which is the second largest disability discrimination award ever [5 cited 29.3.22]

Discrimination occurs when an employer treats and employee unfairly for a reason related to any of the nine protected characteristics e.g. age, disability, race, sex, covered by the Equality Act 2010 [6 cited 29.3.22]

Discrimination based on any of the protected characteristics is usually against the law.

In nearly all discrimination cases there is often always an opportunity for an employer to amicably resolve the matter.

Typically an employee will raise a grievance about the treatment or a formal process will  be conducted that can lead to dismissal e.g. disciplinary of capability.

It presents an opportunity for an employer to fairly hear, understand, investigate and address any discrimination concerns before matters escalate and get out of hand.

The problem appears to be that many employers become overly defensive in response to a discrimination complaint.

It means they will often fail to conduct a thorough, balanced and fair investigation, which can then have extremely serious and costly repercussions.

There are four main types of discrimination [7 cited  29.3.22]

Direct discrimination

This means treating one person worse than another person because of a protected characteristic.

 

Indirect discrimination

This can happen when an organisation puts a rule or a policy or a way of doing things in place which has a worse impact on someone with a protected characteristic than someone without one.

 

Harassment

This means people cannot treat you in a way that violates your dignity, or creates a hostile, degrading, humiliating or offensive environment.

Victimisation

This means people cannot treat you unfairly if you are taking action under the Equality Act (like making a complaint of discrimination), or if you are supporting someone else who is doing so.

ACAS provides practical guidance all employers can follow to prevent discrimination: [8 cited 29.3.22]

  • Having an up-to-date equality policy
  • Providing regular anti-discrimination training to staff
  • Making it clear how staff can complain if discrimination happens
  • Regular one-to-one catch-ups between employees and their line managers, to help build positive working relationships.

This can help:

  • Make sure your workplace treats employees fairly.
  • Make it less likely you will be held responsible for discrimination carried out by an employee.

 

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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