Published 9th December 2020
Discriminatory behaviour is when someone is treated unfairly because of one or more of the protected characteristics, as defined by the Equality Act 2010:
· Age
· Disability
· Gender reassignment
· Marriage and civil partnership
· Pregnancy and maternity
· Race
· Religion or belief
· Sex
· Sexual orientation
Direct Discrimination vs Indirect Discrimination
A clear distinction must first be establised on the differences between direct and indirect discrimination.
Direct discrimination is when someone is treated unfairly because of a protected characteristic they hold, such as their age or race. A clear example of this would be a promotion not being offered to a pregnant woman (this would be discriminatory based on both her sex and her pregnancy) and the job going to a less qualified man.
Indirect discrimination is when rules or arrangements equally apply to a group of employees or job applicants, but in practice are less fair to a certain protected characteristic. An example would be a requirement to work on Sundays; this could be indirectly discriminatory to certain religions.
Bullying
Bullying is when behaviour from a particular person or even a group of people has the effect of making an employee feel unwanted and uncomfortable and is also often associated to feeling intimidated, degraded, humiliated, insulted and/or offended. This may come in many forms, such as an individual who keeps putting you down during meetings, being refused training opportunities by your boss without justification whilst other members of staff are entitled, etc.
Bullying can be a regular pattern of behaviour or alternatively, it may just be a one-off incident. I can happen in person or over social media, at work or outside the workplace, and may not always be obvious or noticed by others.
When is bullying against the law? This is when unwanted conduct or behaviour is in relation to a protected characteristic, as defined above. We would recommend that an individual reaches out to management, HR or even a trade union representative for support should they be subject to this.
If someone feels they are being bullied, it’s important to keep track of the case facts as well as all the relevant times and dates, inclduing any witnesses that may have been present. A diary might be hepful here.
It’s worth noting that if an employee is forced into having to leave their job as a result of severe bullying that their employer did nothing about, they may be eligible to make a claim to an employment tribunal for constructive dismissal.
Harassment
Similar to bullying, in order for someone to claim for harassment, an individual must be subject to an action or comment due to their protected characertisic, which makes them feel intimidated or vulnerable. Like bullying, harassment may arise in several forms and could be a serious one-off incident, it may be acts of repeated behaviour and is not limited to words, gestures, jokes, pranks or physical behaviour that may affect an invidiual.
The law on harassment is extensive and applies to a number of scenarios, but does not apply to marriage discrimination. An indivudal can be harassed because they were thought to have a protected characteristic even though they do not (for example, mistaking someone’s nationality). Someone may also be subject to harrasment for being linked to an individual with a certain protected characteristic (eg. associated with someone who is disabled).
Victimisation
Finally, victimisation is when an individual is treated unfairly because they made or supported (or someone thinks they did) a complaint or act that was in relation to a protected characteristic. For example, if a colleague made a claim of racist bullying against a colleague (which had been witnessed by another colleague) and following on from their admission of this evidence in support, were subject to allegations of poor performance by that colleague, this would be victimisation.
Employer Responsibilities
It’s extremely important for employers to look into and investigate any issues surrounding that of discrimination (inclusive of bullying, harassment and victimisation) as soon as they arise, as should an employee discriminate against someone else, by law the employer could also be held responsible for the employee’s act of discrimination, through what is known as vicarious liability.
There are simple steps available to employers that they may undertake in order to help prevent discrimination in the workplace from occurring, these include but are not limited to:
- Having up-to-date Equality and Anti-Bullying and Harassment policies;
- Providing regular anti-discrimination training to staff;
- Making the reporting process clear to staff who may be discriminated against;
- Holding regular one-to-one meetings with employees and management/HR, in order to cultivate positive working relationships.
We hope you have found the above helpful. If you would like to speak to a member of our team about any of our services or if you have any concerns about discrimination in your workplace or mental health discrimination, please do not hesitate to contact us at enquiries@thrivelaw.co.uk in order to receive your free initial advice. To have a read of a blog which we recently drafted that breaks down the different protected characteristics, click here.
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Why should you outsource your HR services to solicitors? Getting your HR services from a solicitor means, should a case ever proceed to tribunal everything we have ever discussed is protected by Legal privilege meaning all conversations are protected. Whereas if you were to use an HR consultant, all conversations and documentation regarding that employee would be disclosable in the tribunal.
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By Uthman and Alicia
Disclaimer
Please note this blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions on enquires@thrivelaw.co.uk
