There are many ways in which someone can be discriminated against in their employment. We take a look at what shape discrimination may take and how it can be proved.
If an employee is made redundant without the correct process being implemented, the most common legal claim would be for unfair dismissal. However, a redundancy exercise may give rise to many different claims, including discrimination, whistleblowing and unauthorised deductions from wages.
To avoid legal claims, businesses need to go through the stages of planning, selecting and consulting with employees before a redundancy can be finalised. This will especially be the case where the employees concerned have more than two years of employment when they leave, as they will have unfair dismissal rights.
Redundancy law is complex and drawn from both legislation and case law. Each case will differ. However, the basic process should include the following steps:
Different types of discrimination
Discrimination at work could take the form of a difference in benefits such as pay, holiday entitlement, bonuses, working hours, training and promotion, but also extends to the right not to be harassed or bullied. You can find examples of discrimination in the workplace here.
Discrimination can be either direct or indirect, as follows:
This is when you are treated differently from others because of a so-called protected characteristic. The nine protected characteristics, as defined in the Equality Act 2010, are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Indirect discrimination puts people with a protected characteristic at a disadvantage, even though everyone is treated the same. For example, requiring everyone to work full-time could discriminate against women who have children to care for or requiring people to work at the weekend could discriminate against those who observe the Sabbath.
Types of evidence that can be used to prove discrimination
It is not always easy to provide evidence of employment law discrimination if it has happened during a conversation or in a meeting. However, sometimes your own evidence may be sufficient for the employment tribunal process.
You should ensure that you keep a record of everything which has happened which you believe to be discriminatory and pass it to your employment solicitors who will be able to advise you whether discrimination has taken place and put together a workplace discrimination case on your behalf.
Include any emails, social media content or letters that are relevant. If anyone witnessed the discrimination, ask them if they would be prepared to put their name forward.
You will also need to provide evidence that someone in the same situation as you, a ‘comparator’, has been treated differently. You could simply ask them if they would be prepared to make a statement, or make a detailed note of the way they have been treated.
In addition, you need to be able to show that your employer treated you differently because of a protected characteristic. They may try to claim that their treatment was nothing to do with that, so consider whether you can find evidence to the contrary.
For example, they may have discriminated against others in the same way, been unable to explain their reasoning for their actions or ignored company policy in making a decision. Take notes of what they say and back these up with statements from others where appropriate and a copy of any policy or handbook which they have contradicted.
If the discrimination is indirect, you may have to gather evidence as to how many people with your protected characteristic have been adversely affected by a rule. You can ask your employer how many disabled/able-bodied people or men/women they employ if you believe that their treatment disadvantages one group more than another.
You should initially raise a grievance with your employer, in accordance with any employee handbook there may be. If you need advice in putting your evidence together, speak to specialist discrimination solicitors who will be able to help you ensure that your case is as strong as possible.
Can unlawful discrimination be unintentional?
When an employer has a policy of acting in a particular way, discrimination can unintentionally occur. For example, a dress code could inadvertently discriminate against someone whose religion requires a head covering or prohibiting certain hairstyles could discriminate against a certain race.
The burden of proof
Before an employment tribunal will hear a case, the claimant needs to provide evidence in support of their claim, ie. facts which tend to show that discrimination has taken place and that there is a case to answer.
Once the claimant has provided evidence, the employer will then be required to prove that there was a reason why their action was not discriminatory.
What must be proved?
To succeed and obtain compensation for discrimination dismissal, the tribunal must be satisfied that on the balance of probabilities the claimant was discriminated against and that there was no reasonable justification for the discrimination.
An example of reasonable justification is a minimum height requirement on the grounds of health and safety. This would seem to discriminate against women, who tend to be shorter than men, but where is it a reasonable health and safety requirement, the discrimination is permitted.
Top tips for dealing with a potential workplace discrimination case
It is important to keep a careful, detailed record of everything which happens which you believe is discriminatory as well as copies of any written evidence. Put together a diary of what has occurred showing dates and all of the relevant background.
You can ask your employer in writing for supporting information that you may need. This could be information about the numbers of people employed, their written explanation for their actions or a copy of your HR file.
You may wish to speak to specialist employment solicitors before doing this to check that you are asking for the right documentation. You should also be aware that once your employer knows that you are thinking of making a formal complaint it may be harder to put together the evidence you need.
Taking your workplace discrimination case forward
In the first instance, you should usually raise a formal complaint with your employer or the HR department using any procedure they have in place. You can seek legal advice at this stage to ensure that your rights are observed and to give yourself the help and support you need to put your allegations forward.
Your legal representative will be able to ensure that you have sufficient evidence in place and that your claim is taken seriously and dealt with properly. They will also be able to enter into negotiations on your behalf to settle the matter without recourse to an employment tribunal, if this is something that is acceptable to both you and your employer.
Legal representation for workplace discrimination
At Springhouse Employment Solicitors we have extensive experience of dealing with workplace discrimination legislation. If you would like to discuss your situation and how best to proceed to protect your rights and interests, our experienced employment law solicitors will be happy to help. Contact us today by ringing 0800 048 5888 or fill in our contact form. Our team is ready to give you clear, accurate advice.