“Discrimination”, if I had a pound for every employee that had declared something as amounting to discrimination when it wasn’t, then I would have, well, a big pile of pounds. Because when someone alleges discriminatory treatment, it is really just different treatment. Or maybe not very nice treatment based on something that isn’t included within the provisions of the Equality Act. Or not very nice treatment based on nothing at all. And being treated differently to someone else, or even badly, is not discrimination, unless of course that different treatment is less favourable and on the grounds of a protected characteristic.
Elias J summed it up in a slightly more elegant way in Law Society v. Bahl that ‘any unlawful discriminatory treatment is unreasonable, but not all unreasonable treatment is discriminatory’.
This is a very polite way of saying that you can be an appalling human being in the workplace, but this does not make you discriminatory. You can be a dreadful manager or colleague but not be discriminatory. Lousy communication skills, poor leadership, dreadful culture. All technically legal, unless it amounts to constructive dismissal or some sort of final straw. Over the years, I have heard employee say all sorts of behaviour is discrimination, when really it is nothing of the sort. It might be different, it might be unpleasant, or just plain unexplained.
But so what?
My view on most employment law is fairly simple. It is the minimum you should do. It is also the last resort. And it is most certainly not an excuse, not something to hide behind.
You offer the statutory holiday entitlement? Well done you. You comply fully with the Equality Act during your recruitment and selection process? Please find your round of applause in the post.
If an employee comes to you and complains that they are being discriminated against, your first response should not be to get out your latest copy of Tolley’s Employment Handbook and check the technical definition. If you have to get out a contract, a statute, an ACAS code or wave a piece of paper, in response to any of the issues that land in your HR office, you are half way to nowhere. Formal procedures rarely get you far. I’d love to meet a HR professional who can genuinely say that a grievance procedure really helped to resolve an issue and take things forward to a more positive working relationship. As opposed to what is usually does, which is entrench positions, cause stress and take excessive amounts of time when a good honest conversation could been much more useful.
Equality legislation provides important protection to all employees and these rights should never be taken for granted. But it only takes us so far. When it comes to creating a workplace that is fair, reasonable and treats people properly, whoever they are and whatever characteristics they have, on the list of nine or otherwise, the rest of it is down to us.