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Politics, the workplace and discrimination

Emma Gross, employment partner - Spencer West

World politics can lead to heightened emotions within the workforce and can easily result in claims of bullying and harassment in the workplace.

Over the past few weeks, we have been inundated with emotionally charged stories, images and videos of Vladamir Putin’s invasion of Ukraine. Social media, alongside 24-hour rolling news coverage makes the conflict impossible to ignore, and many people, who may well be your colleagues or employees, are personally affected by the war and its implications.

There are more than 20,000 Ukrainians living in the UK. Many British businesses will have employees who are Ukrainian, or who have families, friends or colleagues living in Ukraine. You may also work alongside Russian nationals, or those with connections to Russia, as well as individuals who are in no way directly connected with either country, but who still feel affected by the conflict.

It is natural that there will be strong opinions and emotions.

Whilst HR, managers and employers need to be aware of world events in order to support their employees, they must ensure they keep their personal views away from the running of their business. Additionally, they should manage their employees effectively to allow for discussion but protect members of staff from feeling harassed, victimised or bullied.

Acas advises sending company-wide messages offering support and avoiding speaking directly with individuals so as not to be discriminatory or spark anxiety.

Fair treatment is both a moral and legal duty. Employers have a responsibility to fully investigate and respond to any issue they are made aware of, as well as take all reasonable measures to protect employees. Employers should have clear policies in place as good practice to ensure unwanted conduct does not happen.

The Equalities Act (2010)

The Equality Act (2010) in the UK protects individuals from discrimination during their employment where that discrimination is based on one of the nine ‘protected characteristics’. Race, which refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins, is one of these nine protected characteristics.

The law protects people from both direct and indirect discrimination, harassment and victimisation. It applies to all employers, and covers every aspect of employment, including; recruitment, terms and conditions of employment, promotion, training, pay, redundancy and dismissal.

Direct Discrimination

There are three types of direct discrimination, where someone is treated less favourably in direct reaction to either their own race; the race of someone they are associated with, such as a friend, family member or colleague; or how their race is perceived regardless of whether this perception is correct or not.

Direct discrimination in all its forms could involve a decision not to employ someone, to dismiss them, withhold promotion or training, offer poorer terms and conditions or deny contractual benefits because of race.

Indirect discrimination

This type of discrimination is usually less obvious than direct discrimination and can often be unintended. It applies when a provision, practice or criterion is applied and leaves those who share a certain protected characteristic at a particular disadvantage when compared to others in the group and the employer is unable to justify it.

Harassment

Harassment is often disregarded as jokes, ‘banter’ or office gossip, but if it is violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual, it is in fact harassment.

Harassment is defined as ‘unwanted conduct’ in relation to a relevant protected characteristic. This can include bullying, nicknames, threats, intrusive or inappropriate questions, ‘outing’ someone, excluding someone or sharing insults. It can be verbal, written or physical, and the complaint can come from an employee even if they are not on the receiving end of the conduct, but witness it and it has a negative impact on their dignity at work or the working environment.

Vicarious Liability

Anything that an employee does during the course of their employment will be seen by the law as having been also done by the employer, regardless of whether the employer knew about it or approved it. This means that both the employer and their employees can be held responsible for acts of discrimination in the workplace. To avoid this, an employer must be able to prove that they have taken all reasonable steps to prevent employees from committing discrimination in the workplace.

Uncapped compensation

There is no cap on the compensation that can be awarded for successful discrimination claims. Any compensation that is awarded may cover not only financial loss but also personal injury and ‘injury to feelings’.

Tribunals are able to order the employer to pay compensation, recommend the employer take action, such as change company policy or give a reference and/ or make a statement acknowledging the employee’s mistreatment.

The decisions of the tribunal will be made public and can have reputational repercussions on the employer.

Grievance Procedure

It is important that employers keep an open mind and remain respectful and empathetic to the employee who raised the complaint. It can be particularly upsetting and stressful to experience or witness discrimination. Employers must remember that they have a duty of care to any victim of discrimination and checking to see how the victim is feeling is equally important as getting the investigation right. They may be badly shaken and need a colleague, friend or family member to help them or they may need time off to recover from the incident.

Whilst employers must undertake a thorough investigation of the matter, reach a conclusion and offer a resolution, they should take care to deal with the employees involved in a fair and reasonable manner. They must show tact when looking for evidence that supports the allegations as well as evidence that contradicts them.

An employee who has raised a grievance about discrimination is able to appeal the decision or take the matter to an employment tribunal if they do not believe their grievance has been resolved adequately. It is therefore vital for the employer to keep good records of the process they have undertaken.

Victimisation

The Equality Act (2010) also extends to protection against victimisation which may take place following a complaint about discrimination. Employees have a right not to be treated badly as a result of reporting an act of racial discrimination that has taken place whether against them or against a colleague. As long as the employee has acted in good faith, they are still protected from victimisation even if the allegations turn out to be false.

Education and training are key in preventing racial discrimination in the workplace, along with having clear procedures and policies that are readily accessible to your workforce.

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