Whilst we have a great deal of experience defending Employment Tribunal claims for discrimination, we believe it is better to help you prevent them.
Employers can defend claims for discrimination by showing that they have taken all reasonable steps to prevent an employee from discriminating against, harassing or victimising a colleague. We therefore recommend Equal Opportunities, Diversity and Harassment policies as a minimum step and that you should consider training managers and staff on those policies, recognising discrimination and how to take steps to prevent it. We can help draft procedures, audit existing procedures to ensure they are up to date and by providing diversity, equality and inclusion training in the workplace.
You might receive a Grievance from an employee complaining about discrimination, harassment or victimisation. We can coach you through or even manage the process of investigating grievances, allowing you to get on with your day to day business. We will help you follow a fair procedure, gather and assess evidence and reach a conclusion that is right for your organisation. Where appropriate, we can help you with negotiating solutions that benefit both parties. Advice from Solicitors is privileged from disclosure to your opponent if there were to be any litigation as a result of a grievance process. This does not apply to Employment Consultancies or other advisors, whose emails and other communications would need to be disclosed to an employee who brought a claim.
If you do receive an Employment Tribunal claim, our wealth of experience in discrimination proceedings can help you present the best possible defence, whether we represent you throughout or provide unbundled advice and assistance. We can also advise on likely scenarios and tactics and negotiate settlements.
It is usually possible to agree fixed fees to draft Equal Opportunities, Diversity and Harassment Policies and to provide training. Where fixed fees are not possible (such as when dealing with an open ended investigation or Tribunal claim), we will provide the best estimate we can and keep you fully informed about the costs you are likely to incur. We can agree to cap fees for stages of litigation or fixed fees for unbundled advice. Policies and training are included in our retainer offering for employment matters.
The language may be different, but Equal Opportunities and Diversity and Inclusion policies are about embedding an organisation’s commitment to prevent discrimination. The use of the terms Equal Opportunities and Diversity and Inclusion recognises the fact that treating people in the same way does not always result in equality of outcome. It may be appropriate to adjust standard policies to prevent disadvantage to disabled people, women with caring responsibilities or indeed people with other protected characteristics.
Harassment policies are the first step in defending an Employment Tribunal claim on the basis that the employer took reasonable steps to prevent the harassment. It is also important to promote the policy and take complaints seriously.
Workplace discrimination claims might result from advertising a job, recruiting employees, job offers when hiring employees, arrangements when returning from maternity leave, the way the employee is treated at work or in disciplining them or taking them through a capability procedure. Most discrimination claims result from dismissal or the employer subjecting the employee to a “detriment”.
The Equality Act 2010 consolidated previous legislation preventing discrimination and refers to protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. So discrimination against LGBT or Muslim staff is outlawed alongside discrimination against women or based on national origin or ethnicity.
Direct discrimination is treating a person less favourably than you would others because of a protected characteristic. It isn’t necessary to have that protected characteristic to be the victim of discrimination: it is possible to claim for discrimination by association or because of a perception that the complainant has a protected characteristic.
Indirect discrimination occurs when an employers’ policies or practices place people with particular protected characteristics at particular disadvantage. It might be a uniform policy that doesn’t allow religious dress or jewellery, a height restriction or even a requirement to work full time or in a particular location. Unless the employer can objectively justify the policy or practice as proportionate to achieving a legitimate aim, this is unlawful indirect discrimination.
Victimisation follows a “protected act”, which can be bringing proceedings under the Equality Act, giving evidence or information in connection with proceedings, making an allegation that the Equality Act has been contravened or doing any other thing in connection with the Equality Act. Subjecting a person to a “detriment” because they have done a protected act or even because it is believed they have done or may do a protected act is unlawful victimisation.
Harassment is unwanted conduct that is related to a protected characteristic and has either the purpose or effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating, or otherwise offensive environment for him/her. Sexual harassment may relate to sex or be of a sexual nature. Treating a complainant less favourably because he/she has submitted to or rejected sexual harassment is also outlawed.
A complainant doesn’t need to show that the perpetrator intended to intimidate, degrade, humiliate or offend him/her, just that their behaviour had that effect, meaning that a Tribunal must look at the complainant’s perception, the circumstances and whether it is reasonable for the conduct to have that effect. So an “innocent” joke, comment or action could be found to be harassment if, in the circumstances, a reasonable person in the complainant’s position would be humiliated or offended, but an over-sensitive recipient might not succeed in a harassment claim even if their feelings are genuine.
As well as outlawing direct and indirect discrimination and harassment of disabled people, the Equality Act requires employers to make reasonable adjustments to policies or practices that place disabled employees at substantial disadvantage. Disability is widely defined as a long term condition with a substantial impact on day to day life, covering both physical and mental illness. HIV, Cancer and MS are deemed disabilities.
An employer is vicariously liable for its employees’ discrimination unless it can show that it took reasonable steps to prevent it. Employees can also be sued in their own right: owner managers of limited companies should be aware that they can be personally liable if the Tribunal consider that they were responsible for the discrimination.
The first £30000 of any compensation for loss of employment is tax free. However, a change in the law means that for anyone dismissed on or after 6 April 2018, any payments in respect of the notice period will be subject to tax and national insurance.
This also applies to claims for discrimination and harassment. A tax-free settlement can be a good incentive for an aggrieved employee to sign a Settlement Agreement compromising claims for discrimination or harassment.