Not all workplace discrimination is created equal – discrimination can be lawful or unlawful. Workplace discrimination is lawful when workers are recruited, compensated, trained, promoted and terminated solely on the basis of their skills, abilities and performance.
Unlawful workplace discrimination occurs when an employer treats a worker less favourably than others without having any legal grounds for doing so. An example would be in which a female worker is paid less than a male colleague for doing the same job.
Other common forms of unlawful workplace discrimination include discrimination on the grounds of marital status, sexual orientation, disability, nationality, religion and age. The Equality Act 2010, which bans unfair treatment in the workplace, refers to individuals who fall into these categories as possessing ‘protected characteristics.’
Unlawful workplace discrimination can take two forms – direct discrimination and indirect discrimination. Direct discrimination occurs when an employer treats, or would treat, a worker differently based on their possession of a protected characteristic.
Andrew Rogers won more than £10,000 compensation from bringing two consecutive sex discrimination cases against a college, where he worked as a nude model, after it dismissed him while continuing to offer work to a female colleague. Finding in favour of Rogers, the tribunal said, “There is no obvious explanation for continuing to fail to offer Mr Rogers… work. Mr Rogers clearly suffered significant distress, anger, humiliation and anxiety as a result of the college’s conduct, the more so since the college failed to address the previous finding.”
Direct discrimination can also occur by association. The European Court of Justice has held that a worker does not need to have a protected characteristic to make a claim. The protected characteristic can belong to someone with whom the worker is associated. For example, a Caucasian worker who is treated less favourably because their partner is a member of an ethnic minority can bring an action for direct discrimination.
Related: Employee Rights and Unfair Dismissal
Direct discrimination can also happen by way of perception. A worker who is subjected to homophobic abuse because he is perceived to be gay (even though he is not) can bring a claim for direct discrimination, for example.
Cases of direct discrimination are often successful. However, direct discrimination is lawful and defensible when there is a genuine occupational requirement for the position. For example, a Christian school may confine applications for a scripture teacher vacancy to candidates who are baptised, practising Christians when this is shown to be critical to the proper performance of the job.
Indirect discrimination, by contrast, occurs when an employment practice puts a worker who possesses a protected characteristic at a disadvantage. Indirect discrimination is lawful only when it is imperative to the running of the business and there is no alternative method of achieving this. A condition that job applicants must be clean-shaven, for example, may put some members of religious groups at a disadvantage, but it may be justified if the job involves handling food and it can be demonstrated that workers with facial hair present a legitimate health risk.
Crucially, a worker does not have to be ‘employed’ (in the legal sense) to bring a discrimination action. The Equality Act 2010 protects self-employed, contract and agency workers. It also extends to previous workers who are, for example, given a poor reference. The Act even protects job applicants.
Workers also have the right to be free from other forms of unlawful discrimination in the workplace, such as harassment (or unwanted employer conduct that is related to a protected characteristic of a worker, which is intended to, or has the effect of, violating their dignity or otherwise creating an intimidating, hostile, degrading, humiliating or offensive environment) and victimisation (an employer dealing with a worker less favourably because they made, or attempted to make, a complaint about discrimination).
Sylwia Bobrowska, an ex-employee of the All Wales Ethnic Minority Association (AWEMA), brought successful claims against Naz Malik, chief executive of AWEMA, for sex discrimination, harassment and victimisation. Bobrowska complained that Malik made suggestive comments to her in the course of a staff meeting and inappropriately touched her outer garments on several occasions. Within ten minutes of Bobrowska reporting Malik’s behaviour – insisting on an apology from Malik – she was suspended and subsequently dismissed within days.
Malik’s defence to the harassment allegation was that his comments were never intended to cause offence, which was irrelevant given that harassment does not require a finding of intention on the part of the alleged wrongdoer. The tribunal rejected Malik’s argument, finding unanimously in Bobrowska’s favour.
Bobrowska’s lawyer, Stuart Atherton, said, “Sylwia feels elated by the judgment…it is a vindication of the complaints she has been raising. She has had someone external look at the situation, heard all the evidence and has taken the view that her allegations of victimisation and harassment are well-founded.”
If an employee thinks they are being unlawfully discriminated against (in whatever form), harassed or victimised at work, they may be able to make a claim to an employment tribunal.
photo by: vazguez