Discrimination and Harassment; how to avoid and manage

In 2019 a Europe wide study found that reports of discrimination were highest in the UK, where 38% of respondents felt that they had been discriminated against at work. Young people appear to be particularly affected as 49% of workers aged 25-34 reported that they had faced some form of discrimination. Further, the report ‘Still Just a Bit of Banter?’ revealed that over half of women in the UK have experienced sexual harassment while at work. For women aged 16-24 63% had been victims of unwanted sexual behaviours at work. These statistics clearly show that discrimination and harassment is still a huge problem and something which employers need to control, ideally by preventing it from happening.

What is discrimination? Discrimination is defined as treating someone differently and less favourably because of a protected characteristic. The protected characteristics are defined in the Equality Act 2010 and are: race, religion or belief, age, sex, sexual orientation, gender reassignment, marriage and civil partnership and disability. Within employment, there are two types of discrimination; direct and indirect. Direct discrimination is directly treating someone unfairly because of a protected characteristic, e.g. if a well-qualified employee is not offered a job promotion because they are a woman but a less qualified man received the role.

Indirect discrimination is where rules or arrangements (referred to as a provision criterion or practice) have a less favourable effect on a particular group who share the same protected characteristic, e.g. asking all employees to start working on Sundays may be discriminatory against Christians who could not work on Sundays. The employer must show that the rule or arrangement was a proportionate means of achieving a legitimate aim. For example, an airline request that all pilots must have 20/20 vision, an applicant who is 50 claims that this is age discrimination as eye sight deteriorates as you get older. The airline said that the 20/20 vision requirement is a proportionate means of achieving a legitimate aim as pilots need to ensure the safety of hundreds of passengers and so good eye sight is necessary.

To bring a claim for discrimination, employees do not have to have a specific length of service, however if an employee believes there has been discrimination, a claim must be made within three months less one day from the act of discrimination or from the most recent act if the discrimination was ongoing. Would-be claimants must obtain a certificate of early conciliation from ACAS first, to start a claim and that process can extend the three month time limit by a further one month. Awards for discrimination include compensation which is uncapped.

As per the statistics at the beginning of this article, it is clear that more work needs to be done to tackle discrimination. ACAS recommends the following:

• Making sure employers do not ask questions related to protected characteristics in the interview process, e.g. are you planning on having children soon?;
• Providing an up-to-date equality policy and regular anti-discrimination training;
• Having a non-judgmental and open channel of communication when discrimination does happen and comforting employees that their claims will be taken seriously; and
• Having regular, private one-on-one conversations and catch ups with employees.

What is harassment? Harassment is defined as being any unwanted conduct that has the purpose or effect of violating the dignity of employees or creating an intimidating, hostile, degrading, offensive or humiliating environment. To be protected under the Equality Act 2010, the harassment must be related to a protected characteristic (above). Examples of harassment include sexual harassment, continuous aggression, bullying, offensive and intimidating comments. To defend a claim, employers would have to show that they took all reasonable steps to prevent the person carrying out the act. If the claim is successful, the claimant could receive uncapped compensation, which takes into account any financial loss, injury to feelings and aggravated damages. The award can be very high and the damage to company reputation can be huge.

Ways to minimise the risk of harassment could include:

• Anti-bullying and harassment policies;
• Drawing attention to any policies so employees know that they are available and how to access them;
• Emailing out policies and information when there are going to be staff events (off-site events with alcohol are likely to exasperate any pre-existing harassment/bullying issues);
• Providing equality and diversity training;
• Placing emphasis on disciplinary and grievance procedures;
• Whistle-blowing policies.

An example of where companies do not take the right steps is the sexual harassment misconduct claim against a Fellow at the Chartered Institute of Fundraising which spanned across several events. The CIoF received several complaints but failed to take any action which allowed the Fellow to continue attending events. The summary report concluded there were “clear organisational and governance failings” in its culture and processes. The report also acknowledged that the former chief executive of the CIoF, Peter Lewis, who stepped down in June, “bears responsibility, along with other trustees and staff, for not taking action sooner in tackling these cultural and organisational failings”. Other failings included insisting on formal written complaints rather than verbal disclosures, a lack of action when complaints were made, a lack of understanding of anonymity and a failure to make notes in some meetings discussing harassment allegations. Eventually the Fellow was stripped of his title and was not allowed to attend future events. If the CIoF had different measures in place, the Fellow may have been stopped earlier which could have prevented further harassment claims.

Discrimination and harassment are never acceptable and whilst there is evidently a lot more work to be done, by implementing the right processes and channels of communication, employers have the opportunity to reduce issues within their workforce.

If you have any questions regarding discrimination or harassment then our team of employment lawyers would be happy to help. Please get in touch at info@ts-p.co.uk.