Bullying & Harassment at Work – Introduction

by Sofie Lyeklint | May 14, 2014 | Employment

As children, we were taught a set of social rules which were, at least in theory, to ensure that once we were all grown up we would instinctively know what it meant to be a decent human being. We went through life with an acquired instinct about how to interact with one another. Stick to this and you are sorted we thought.

Then times changed.  For some, the frame of reference was always slightly out of synch with common sense and the general consensus. Perhaps this was always going to be a side effect of society moving forward.

Some argue that the relationship formed by an employment contract is unequal in its very essence. You need a job to survive and the employer has a choice between giving the job to you, as opposed to one of many other hopefuls.  It therefore seems logical that our behaviour in the workplace is affected by this perceived power imbalance. Dignity at work policies and legislation aim to ensure that we are all interacting within the confines of an agreed set of social rules. It also addresses behaviour that ultimately may be detrimental to both the business and the individual.

So what does all this mean in practice?

This article has been split into 5 parts. Click on the links to navigate to each part.

1. Introduction into Bullying and Harassment and why it matters
2. Bullying and Harassment: What do you need to care about?
3. What does your staff handbook say? And examples of harassment
4. Unusual forms of harassment
5. Action Plan and final words

Definition: Bullying and Harassment

There are many definitions of bullying and harassment.

Bullying may be characterised as: Offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.

Harassment as defined in the Equality Act 2010 (EqA) is: Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive for that individual.

(Source: ACAS Guide for Managers and Employers Bullying and Harassment at Work)

For examples of bullying and harassment, please follow the below link to the relevant Acas Guides.

• Bullying-and-harassment-at-work-a-guide-for-employees
• Bullying-and-harassment-in-the-workplace-a-guide-for-managers-and-employers

Why does it matter?

The effects of bullying and harassment on the individual are more readily identified as it will most likely lead to stress, loss of self confidence and self esteem caused by harassment and bullying.  The individual can also feel insecure about their job or fall ill due to the increase of stress in the workplace.  Should this happen, the employee may be absent from work and in extreme cases, even decide to resign.

In any event, bullying and harassment at work will lead to a decrease in efficiency, adversely-affected relations in the workplace and an increased cost to the business may occur due to poor employee relations, low morale, inefficiency and (potentially) loss of staff.  As the ACAS code says, it is important to note that the impact on the individual can be the same as harassment and the words bullying and harassment are used interchangeably in the workplace.

Unless bullying amounts to conduct defined as harassment in EqA it is not possible to make a claim to an employment tribunal about it.

For the individual, this can include:

• Stress and/or sleep disturbance.
• Fatigue.
• Panic attacks or general anxiety.
• Depression.
• Impaired ability to work/concentrate.
• Reduced job performance and relations in the workplace.
• Loss of self-confidence and/or self-esteem.

For the employer, the cost to the business can include:

• Poor employee relations.
• Low morale.
• Loss of respect for managers and supervisors.
• Poor performance.
• Inefficiency and loss or productivity.
• Absence.
• Resignations of skilled staff.
• Damage to company reputation.
• Tribunal or other court cases and payment of unlimited compensation.

As the ACAS guide explains, bullying and harassment are not only wholly unacceptable on moral grounds, but may also create serious problems for your business as a whole.  The following are potential outcomes to a bullying and harassment situation that is ignored:

• Poor moral and poor employee relations.
• Loss of respect from managers and supervisors.
• Lost productivity.
• Actions.
• Resignations.
• Damage to company reputation.
• Tribunal and other court cases and payment of unlimited compensation.

Go to Part 2 – Bullying and Harassment – What do you need to care about?

Bullying and Harassment: What do you need to care about?

by Sofie Lyeklint | May 14, 2014 | Employment

What do you need to care about?

Types of Harassment

So what does all of this mean for you? Unlike direct discrimination, harassment does not require a real or hypothetical comparator.  It is therefore not necessary for the worker to show that another person was, or would have been treated more favourably. (For further information on discrimination please see a previous article I have written).

EqA (The Equality Act) prohibits three types of harassment.  These are:

• Harassment related to a “relevant protected  characteristic”;
• Sexual harassment;  and
• Less favourable treatment of a worker because they submit to, or resist, sexual harassment or harassment related to sex or gender reassignment.

The relevant protected characteristics are:

• Age
• Disability
• Gender reassignment
• Race
• Religion or belief
• Sex
• Sexual orientation

Harassment Related to a Protected Characteristic

For this type of harassment to occur a person has to engage in unwanted conduct which is related to a relevant protected characteristic and which has the purpose or the effect of:

• Violating the worker’s dignity, or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.

It should be noted that unwanted conduct may include a wide variety of behaviours.  It can for instance be:

• spoken or written words or views
• imagery
• graffiti
• physical gestures
• facial expressions
• mimicry
• jokes
• pranks
• acts affecting a person’s surrounding or other physical behaviour

Go to Part 3 – What does your staff handbook say? Examples of harassment       ¦       Or go back to Part 1

Bullying and Harassment – Examples

by Sofie Lyeklint | May 14, 2014 | Employment

What does your staff handbook say?

If you have a dignity at work policy in your staff handbook, it is advisable to include clear examples of what constitutes unwanted conduct. This ensures that it is then clear in everyone’s mind where you draw the line.  (Work Manual from Bizezia has a number of fully editable work policies – look up details at: www.bizezia.com/products/work-manual)

It is important to note that the word unwanted in this context actually appears to mean the same as unwelcome or uninvited.  For the purposes of EqA, unwanted does not mean that express objection must be made to the conduct before it becomes unwanted. Another misconception is that a one-off incident cannot amount to harassment. This is not true. If the act is serious enough it can amount to harassment under the EqA.

Example:

The concept related to a protected characteristic is also important as it has a very broad meaning in that the conduct does not have to be because of the protected characteristic.  Unlike that which a lot of people think, this can include the following situations:

• Where conduct is related to the worker’s own protected characteristics:

If a worker with HIV is verbally abused because he or she has to take a lot of medication in the workplace, this could amount to harassment related to disability.

The most common form of harassment in the workplace is where a person is generally abusive to other workers, but in relation to a particular worker, the form of the unwanted conduct is determined by that worker’s protected characteristic.

Example:

• Where there is any connection with a protected characteristic.

Under the EqA, protection is provided because the conduct is dictated by a relevant protected characteristic. It doesn’t matter if the worker has that characteristic themselves. Connection with a protected characteristic may therefore arise in several situations:

• The worker may be associated with someone who has protected characteristics.

Example:

• The worker may be wrongly perceived as having particular protected characteristics.

Therefore, in the above example, the daughter may not have converted to Islam, but if her father is being subjected to abuse because his colleagues think she has, he could still have a claim for harassment related to religion or belief.

• The worker is known not to have the protected characteristic but nevertheless is subjected to harassment related to that characteristic.

Example:

• The unwanted conduct related to a protected characteristic is not directed at a particular worker, but at another person or no one in particular.

Example:

• The unwanted conduct is related to the protected characteristic, but it does not take place because of the protected characteristic.

Example:

Sexual Harassment

There is a separate protection against conduct which is of a sexual nature.  This type of harassment does not need in any way to relate to a protected characteristic.

This type of harassment occurs where:

• The perpetrator engages in conduct of a sexual nature.
• The conduct has the purpose or effect of:
  –  Violating the victim’s dignity, or
  –  Creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.

Conduct of a sexual nature can include verbal, non verbal or physical conduct, including unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails of a sexual nature.  Again, if you do have a staff handbook which included a Dignity at Work Policy, it is advisable to clearly state which kind of behaviour is prohibited as they are likely to amount to sexual harassment under the EqA.

Example:

There are a couple of things to learn from the above situation. Firstly, the statement was made at a staff party which, even though it was after working hours, was (for the purposes of the EqA) still in the course of the girl’s employment.  This is also a good example of how sometimes the best way to deal with prohibited conduct is to address them informally and encourage the perpetrator to apologise before you move to a more formal grievance and disciplinary procedure.

With the above example in mind, as for standard harassment, if the purpose of the conduct is to violate the victim’s dignity or create an intimidating, hostile or degrading, humiliating or offensive environment, then the perpetrator may be liable even if it did not have that effect, or at least has not been shown to have that effect.

Conversely, if the effect of the conduct is to violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, then the perpetrator may be liable even if that was not the purpose of the conduct.

In deciding whether conduct has the effect of violating the victim’s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim, a tribunal must take each of the following into account.

• The perception of the victim.
• The other circumstances of the case.
• Whether it is reasonable for the conduct to have that effect.

Hence, it will be no defence that the perpetrator would have behaved just the same to men, or women or both.  So, in the example above if the senior partner said the exact same thing to a male employee at the staff party it would not have been a defence.

Less favourable treatment for rejecting or submitting unwanted conduct

The third type of harassment occurs when a worker is treated less favourably by the employee because that worker submitted to, or rejected unwanted conduct of a sexual nature, or unwanted conduct of a sexual nature, or unwanted conduct which is related to sex or to gender reassignment, and the unwanted conduct creates an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.

Example:

Under this type of harassment, the initial unwanted conduct may be committed by the person who treats the worker less favourably or by another person.  This means that if she turned down the manager, but then the manager’s best friend who also works at the same company, is treating her less favourably because she had turned down the manager, she could have a claim of harassment over the best friend’s actions.

The Concept of Purpose or Effect

It is very important to note that if the purpose of subjecting the worker to the conduct is to create an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim, this will be sufficient to establish unlawful harassment.  It will not be necessary to inquire into the effect of that conduct on that particular worker.

Regardless of the intended purpose, unwanted conduct will also amount to harassment if it has the effect of creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.

Go to Part 4 – Unusual Forms of Harassment       ¦       Go back to part 2       ¦       Go back to Part 1

Unusual forms of harassment

by Sofie Lyeklint | May 14, 2014 | Employment

Recently, an interesting article in Personnel Today appeared online.  In this article, Steven Simmons ran through a list of 15 unusual forms of harassment that have been considered by Tribunals. The full article can be assessed through this link, but I have taken the liberty to summarise the 15 unusual forms of harassment below:

• Same sex harassment: A man discriminated against another man by making sexual comments and gestures, not all of which were directed at the claimant.

• Harassment by post: A postcard depicting a group of bare breasted black women, sent by a work colleague from South Africa to a black police officer in the UK amounted to racial harassment.

• Harassment by note kept on archived file: A gay barrister was discriminated against when he discovered a memorandum in an archive that made derogatory comments about his sexual orientation.

• Star Wars Nickname: Evidence of age bias against an older worker included banter related to his age, including his colleagues nicknaming him Yoda.

• Accidental harassment: A job applicant was subjected to harassment when he was accidently sent an internal email that he felt was dismissive of his application.  A manager had accidentally replied to the job applicant rather than sending it to the employer’s recruitment team.  Harassment can also occur if an individual accidentally overhears a comment, even if the perpetrator does not know that individual is listening.

• Teenager Jibe: In an age discrimination case brought by a young worker, the tribunal held that the manager’s use of the words “teenager” and “kid” to describe the claimant amounted to harassment.

• Subordinates bullying a manager: A common scenario for employers that operate in male dominated environments is that the male employees, who were not used to being managed by a woman, challenged the authority of a female manager which amounted to bullying.

• Facebook sabotage: Two members of staff took their heterosexual manager’s mobile phone, without his permission, and posted a comment on the status update on his Facebook page saying “I’m gay and proud”. This amounted to sexual orientation discrimination.

• Shouting across the room: The context of the remark can be critical. The EAT recently held that there was no religious harassment when a Catholic employee took offence that a colleagues expletive about the Pope shouted across a busy newsroom.

• Bottom slapping: In a sexual orientation harassment claim the tribunal found that when the restaurant in which the claimant worked was busy, the manager would “somewhat forcefully” direct waiters, sometimes by slapping their behind. Interestingly enough, although the manager had perhaps touched the claimant’s bottom, the Tribunal found that this was not the basis of the claimant’s sexual orientation.

• Speaking in a foreign Language: This case was in the end unsuccessful, but it is still a good example of some problems that can occur when colleagues insist on communicating in their first language to the possible exclusion of other workers who do not speak this language.

• Discriminatory graffiti: It is possible to claim that you have been harassed after simply reading graffiti on a wall.  The complaint was made in relation to racist graffiti in the toilets.

• Toy helicopter and turban incident: In this case, the claimant argued that a colleague’s suggestion that a radio controlled toy helicopter, which was being flown around the office for laughs, landed on the flat surface of his turban amounted to religious harassment.

• Discrimination by fancy dress: An employment tribunal found that a gay employee was harassed at a workplace fancy-dress event, that he could not get out of, and that leant itself to banter of a sexual nature that could easily offend.

• Hat-based harassment: A Tribunal considered whether or not a manager harassed a black pub worker when he told him that he looked like a pimp when he was wearing a promotional St Patrick’s Day hat.

Practical Tips & Acas Guidance:

ACAS has published useful guidance on bullying and harassment in the workplace directed towards both employees and employers.  You can access two guides through the below links:

• Bullying-and-harassment-at-work-a-guide-for-employees
• Bullying-and-harassment-in-the-workplace-a-guide-for-managers-and-employers

Go to Part 5- Action Plan & Final Words       ¦       Go back to part 3       ¦       Go back to part 2       ¦       Go back to Part 1

Bullying and Harassment – Action Plan and Final Words

by Sofie Lyeklint | May 14, 2014 | Employment

Action Plan

So what should you do if you feel that you are being harassed at work or bullied?

First of all, keep a diary of all incidents, record dates and potential witnesses and keep any written correspondence which relates to your complaint.  Your complaint might be confidential and sensitive in nature and therefore you should find somebody in the workplace to whom you can talk to without feeling too uncomfortable.  If your company has a grievance procedure, you should contact the appropriate person and submit a grievance.  It does not have to be a formal written grievance at first instance as it may be possible to resolve the situation informally through informal talks and/or mediation.

If you can and you feel brave enough, you should tell the person to stop whatever it is they are doing that is causing you distress.  Otherwise, they may not be aware of the fact their actions are having such an effect on you. This is very important in situations where the bullying or harassment could be seen as being in a grey area and where the conduct is not as overtly offending.  You should also talk to your union representative if you have one and also call the free Acas line for further advice.

It is important to remember that if you feel that you have been bullied or harassed, you should not be afraid to be accused of over-reacting or worried about that you would not be believed if you do report the incident. The situation may have come to a point where it is a last straw situation and you should not feel any fear of retribution if you do make a complaint.  As set out above, behaviour that is considered bullying by one person may be considered firm management by another.  It is therefore important that you are clear in your complaint and have as much documentation as possible.

Final words

It is very clear that it should be in every employer’s interest to promote a safe, healthy, fair and dignified environment in which employees can work.  Employers should also be aware that there may be health and safety issues as the HSE reminds employers that looking after the health of employees includes taking steps to make sure that employees do not suffer stress-related illness as a result of work.

All organisations, regardless of size, should also have policies and procedures dealing with misconduct, grievance and disciplinary matters.  It is also important to look at you own management style as an authoritarian management style may in fact encourage bullying and harassment in the workplace.  You should also ensure that when dealing with alleged bullying and harassment under your disciplinary rules and procedures and grievance procedures, you should ensure that you have made appropriate provisions for confidentiality and support for the victims.

You should also remember that the victim is not always the person that is complaining about harassment.  If the harassment is completely unfounded and contrived, it can have a very detrimental effect on the person that’s being complained about.  For example if a young female employee complains about an older male employee saying that he has been looking at her in an inappropriate way or made rude and sexual comments to her and this is completely untrue, the male employee may complain of bullying as a cross grievance as being accused of having done something like this is likely to make the male employee feel intimidated or insulted and humiliated.

The bottom line is, always get to the root of the problem. The chances are that it’s just the tip on the iceberg.

Go back to part 4       ¦       Go back to part 3       ¦       Go back to part 2       ¦       Go back to Part 1

Interview with HR Director, Pia Särsvik of Ellco Food

by Sofie Lyeklint | Apr 22, 2014 | Employment

Pia Särsvik

Sofie Persson, employment lawyer at Hove-based solicitors Engleharts, interviewed Pia Särsvik, the HR Director at Ellco Food, a Swedish food company. Here’s what she found:

Pia Särsvik is the HR Director at Ellco Food – a food manufacturing company that is owned by BHJ, a Danish company.  Ellco has sites in both Europe and the US and employs about 900 staff around the world.  BHJ is in turn owned by an American privately owned company with head offices in Ankeny, Iowa, USA.  The company develops and manufactures food ingredients based on animal proteins and manufactures high purity plasma fractions. Ellco Food in Sweden has offices in both Stidsvig and Kävlinge and has just under 100 employees.

Pia has worked with HR matters for over 25 years and has experienced great changes within the Swedish labour market. For instance, the effects of deregulation of state owned enterprises and adapting businesses so that they are compatible with free market business operations.  This has involved extensive reductions in staff, and a great need for new competencies and increased efficiency on many levels.  According to Pia, the most fun part of her job working in HR are the constant changes and how this has challenged her to find solutions that enables the employer to adapts itself to new demands and the ever increasing competition.

When Pia is not working, she is involved in several sports activities and recently ran a half marathon in Gothenburg.

1. What is the most interesting problem you have had with an employee and/or in the workplace?

I had a misconduct case involving an employee leaving the workplace before the end of his shift. He had even got one of the holiday temps to clock his card at the time when he should have clocked out himself.  I considered this to be theft from the company because the employee would have been paid in spite of his unauthorised absence. The employee who was dismissed for gross misconduct was not a union member but instructed a lawyer to claim compensation.

2. How was it resolved?

The company had to pay compensation equivalent to 18 months pay which was about half of what the company would potentially have to pay if they had been taken to an employment court and lost.

3. Have you ever been sued for breaches of employment rights?

No, never.

4. If you could decide, what would be the top three employment rights that you would change?

The section of the Employment Protection Act, which says that the last one to be employed is the first one to be dismissed. This “last in, first out” rule makes it very difficult to make capability dismissals. An employer needs greater flexibility and freedom of choice when it comes to retaining individuals who have the skills that the company needs.

5. Could you provide an example of how local culture and practices shape your day-to-day dealings with your employees?

Many of our employees are from the local village, which is quite small, and have a low level of education and no experience of other workplaces. Most of them know each other really well and may even have grown up together which can lead to great loyalty between the colleagues instead of towards the company.

6. How do you motivate your employees?

Through providing continuous information both on a company wide and departmental level. At these information meetings, the employees are given the opportunity to ask questions and make representations. All managers have individual development meetings with their co-workers. This is followed up by a process called “barometer” to ensure that this takes place. A competency development plan is put together as an action plan at these meetings. We encourage and sponsor sports and general health activities. We also celebrate birthdays and other [hogtidsdagar]. We have an active rehabilitation programme for early return to work and we celebrate achievements such as performance results and quality certification etc.

7. What do you hope that your employees say about you?

That I am competent, fair and that they have confidence in me. That I am professional and treat the employees with great respect.

8. What do you think is the worst thing a manager can do for employee moral?

To have a complete lack of respect for the other colleagues. To criticise people publically instead of having a private conversation and to bad mouth colleagues. A manager should also not be unclear in his or her communications.

9. And conversely, what is the best?

Your colleagues should feel safe and confident enough to turn to their manager but also know their obligations as well as their rights.  Essentially the opposite to the above.

To respect your employees and be clear and direct.

10. Are there any books you have read that have influenced your management style?

I have read a lot of books, but there isn’t any specific technique that has influenced my management style.  I think what has influenced me the most are my experiences and the mistakes I have made.

I have also been influenced by more experienced leaders that I have respected in their professional capacity.

11. Do you have employment contracts for your staff?

Yes, for everyone.

12. Do you have a staff handbook setting out your company’s policies and procedures?

Yes, for everyone.

13. What are the rules for issuing an employment contract?

An employer has to provide a written contract of employment within 1 month of the employee’s employment.  What needs to be included in an employment contract is very regulated.
See Sofie’s previous blog on Employment Contracts in Europe.

14. Have you ever had any disputes or problems in relation to the terms and conditions of employment?

There are no specific rules and it’s usually only involving a few discussions that are sometimes quite informal.

15. What about lunch breaks? How are they spent?

The staff that are employed under collective agreements have lunch in the staff canteen because they only have a 30 minute lunch break.  There isn’t time or opportunity to go to an external restaurant.  White collar workers eat either in the staff canteen or in external restaurants.

16. How often do you pay your employees? Do you ever run into problems with their salary?

Salary is paid once a month.  Our company outsources payroll to an external provider, who is rarely available, and there are minor errors with the payroll.

17. What is the minimum wage? What would happen if you did not follow this?

At present, minimum wage for employees that are employed under a collective agreement is just over 19,000 Swedish Krona, (approximately £1,800 per month).  In Sweden, salaries are always talked about in net pay because the tax regime is such that if you would talk about salary in gross terms, it would look like you would be earning quite a lot.  The minimum wage is in accordance with the collective agreement the company has signed and therefore the company obviously follows it.

18. Do you pay your employees for sick time? Is there a government scheme?

According to the sick pay legislation, the employer pays the first 14 days sick pay, except for the first day of illness which is a qualifying day. From day 2 to day 14 you get 80% of your salary as sick pay.

19. What are the rules about parental leave? Does it apply equally to both men and women?

There are two kinds.  There is parental leave, which means that a parent has the right to be completely free (with or without maternity or paternity pay) until the child is 18 months.  After that you have a right to full leave, but only on the basis that you do not get full maternity or paternity pay.  In other words, you can take parental leave with full pay for 18 months and after that you have the right to further leave but the parental leave pay is reduced.  The second kind is part time leave without any parental pay.  Regardless of getting parental pay, a parent has the right to shorten his/her normal working hours by up to a quarter – this applies until the child has turned 8 years old or still hasn’t completed their first year of school.  These rights are equal for men and women.

20. What about holidays? Have you ever had issues with employees who are absent without leave?

This question is related to the above question about the issue I had with the employee who asked the holiday cover to clock him out.  If an employee is AWOL, that is absent without leave, we will engage our disciplinary procedure, which takes the form of warnings and/or ultimately dismissal as described in question 1 in the first section.

21. What benefits do you give your employees?

The following are some of the benefits that we give to our employees.  Free coffee, Christmas gifts, a Christmas party for the employee and their entire family.  We subsidise the food provided in the staff canteen and in the staff tuck shop.  We also subsidise extra curricula sports and health activities. We have scheduled breaks and white collar workers are sometimes allowed to take half or full days off in connection with public holidays or other religious holidays.  The employees have access to a holiday home in Spain at a reduced price and also access to a fishing pond.

22. Have these benefits been cut in recent years due to budgetary restraints? If so, have you noticed a difference in staff productivity?

Some of these benefits have been taken away or reduced due to an increase in competition.  We didn’t notice any change in productivity.

23. What policies do you have in place for employees to raise concerns over their immediate manager?

If the employee doesn’t want to tell their direct manager about their grievance or critique, there is an opportunity to turn to the manager of that manager, the personel manager or a union who then would raise the issue with the company.

Discrimination at work

by Sofie Lyeklint | Apr 7, 2014 | Employment

In this article, I talk about discrimination at work and how it happens in practice. To make it easier for readers, I have used my own circumstances and background, not because I particularly like to write about myself but rather to explain many of the issues involved.

I think it’s safe to say that we have all discriminated against another person at one time or another throughout our lifetime.  I hold my hands up and confess that I do have inherent prejudices about other people which are largely founded on my upbringing, cultural background and where I currently live. I once read (probably in one popular science publication or another) that discrimination is deeply rooted in the human mind and a hangover from our pre-historic days.

The argument is that our ancestors were able to recognise and discriminate against people that were different from them. This ensured that they would readily be able to distinguish themselves from, and be instinctively wary of, strangers who might come to steal their pile of rocks, their food, and their women, thus reducing their chances of surviving and procreating. How this translates to the modern world is rather interesting. Most of us do not spend all day guarding a pile of rocks but we do not like it when people who we perceive are “different” encroach on “our territory” whatever the perceived difference or the territory might be. What should you as an employer do when this seemingly innate character flaw becomes unlawful discrimination? The law is there for a reason but the lines are undoubtedly blurred.

Most discrimination in the workplace is most likely found in general banter, or hasty comments, and sometimes isn’t even meant to be discriminatory at all. For instance, I possess quite a few attributes that could be protected under the Equality Act 2010.  I am a woman, ethnically Indian, my nationality and national identity is Swedish, I am married, Christian protestant and 31 years old.

It is unlawful to discriminate against a person at work because of age (or perceived age), disability (past or present), gender reassignment, marriage and civil partnership status, pregnancy and maternity, race (which includes colour, nationality, ethnic origins, national origins), religion or belief, sex and sexual orientation.  Let’s see, how many of the protected characteristics did we tick there? Needless to say, the people in your workplace will undoubtedly tick at least one if not many boxes and employers have a legal responsibility to take such steps as are reasonably practicable to prevent unlawful discrimination for any of the above predicted characteristics.

Sadly, it is usually the hasty comments that are not very well thought through that can have a very serious impact on the person to whom they are said and may even amount to a prohibited act under discrimination legislation.   I was once told in an appraisal that I had communication problems and that maybe this was because I was Swedish.  I assume that this meant that the communication problems were due to the fact that something in my culture or behaviour made me less skilled at communicating with clients and colleagues and was therefore marked down in relation to communication skills. Anyone spot the mischief that discrimination legislation aims to remedy?

With the risk of blowing my own trumpet, I speak six languages and I have been educated in a bilingual high school and went to university and law school in the United Kingdom.  I have also spent the past 15 years living and working in Hong Kong, London, Beijing, Guangzhou and Izmir. If anything, I would hope that the fact that I spoke another language well enough to be able to conduct business in that language, and had other cultural personal and professional experiences would make me more able to communicate with clients and colleagues. The jury is undoubtedly out on the veracity of this statement, however, in order to not fall foul of discrimination legislation, what would you do as an employer if such a scenario was brought to your attention?

What is discrimination at work?

So how does it work then?  What is the legal framework that employers and employees should be aware of?

Discrimination may occur in the following forms:

1. Direct Discrimination — this is treating someone less favourably because of a protected characteristic. An example of this is paying someone less because of their sex or because they belong to a particular racial group. ‘Because of’ is very wide and includes less favourable treatment based on a perception of another person, for example that the person is gay, or is disabled, whether or not this perception is correct and even if the perpetrator knows that their perception is, in fact, wrong. It also includes less favourable treatment because someone is associated with another person who has a protected characteristic.

So, going back to my own experience, if the person in question would have employed only Swedish people and treated all Swedish people exactly the same, then there will have been no less favourable treatment.  This artificial situation appears quite unlikely because it does not, on the face of it, seem right that you could have employed only Swedish people and then treat them all really badly because they’re Swedish.  This is because it is very difficult for an employer to explain clearly unreasonable treatment of a worker and it might be inferred from the absence of an adequate explanation that discrimination has occurred.

It is also important to note at this point that different treatment is not the same as less favourable treatment.  It must be shown objectively that the treatment of the complainant was worse than that of the comparator.  If this were an Employment Tribunal case, a claimant may compare the treatment with that of a real comparator or ask the Tribunal to infer that the employer would have treated a hypothetical comparator more favourably.  At this stage the burden is on the claimant to show that they were or would have been treated less favourably than their actual or hypothetical comparator.

Having an actual comparator (in my case another person in the workplace who wasn’t Swedish), is usually quite straightforward.  It is a lot more difficult with hypothetical comparators and you may have to look at how other workers were treated in situations that were not identical but bore some similarities to the claimant’s circumstances.  You can also look at other behaviour in the workplace that tends to make the possibility of discrimination more likely.  For example, if the workplace is full of very sexist comments against women.  If that were the case, it’s arguable that this shows a probability that a male worker would have been treated more favourably.

It is then not enough to show that somebody has been treated less favourably.  You must also show that it happened because of a protected characteristic (see above).  If in the scenario set out above, my appraiser was generally telling me that I have communication problems because I don’t listen and/or aggressive and/or arrogant and/or an unpleasant person, that would not be discrimination because it has nothing to do with the fact that I’m Swedish.  The problem is that the person made a connection between my behaviour and equated that with the fact that I was acting in this way because I’m Swedish. You see the difference?

As my experience was never investigated nor tried in a Tribunal, I can only put forward the argument that the statement amounted to less favourable treatment because of a protected characteristic, namely race (nationality). It follows that it would arguably amount to direct discrimination because I was treated less favourably than a person who did not have that protected characteristic – that is someone who was not Swedish. The concept of being treated less favourably is important because it has to be looked at in the context.  The fact that the offending statement was made in an appraisal arguably meant I was marked down on communication because the appraiser said that I wasn’t able to communicate as well because I was Swedish. Then the next question is, would the appraiser have treated a person who was not Swedish more favourable?

This can become quite technical and reading between the lines, at the time the statement was made, I took it as meaning that I would have received a higher communication scoring if I were not Swedish. By extension, the appraiser expressed a view that Swedish people are worse at communicating than people who are not Swedish. I do not think you need to be an employment lawyer to see where this is going.

Unfortunately, given the many protected characteristics that I possess, I have been discriminated against in the workplace many times.  I must confess though that this was the first time I appeared to be treated less favourably because I am Swedish.  You would think that the person committing the prohibited conduct would have picked any of the other protected characteristics to treat me less favourably for? More about this later.

2.  Indirect Discrimination — this is treating people in the same way but in a way which adversely affects those with a protected characteristic. An example of this is telling all employees that they have to work late at night — although applied to everyone, it will adversely affect those employees with childcare responsibilities and these tend to be women.

In the context of sex discrimination, this might include certain dress codes.  There was a workplace dispute in Sweden which was noted on the news here in the United Kingdom last summer. As you may recall, we were graced with a spell of very hot weather and the issue was in relation to whether the dress code applied to bus drivers was discriminatory. What happened was that during the spell of hot weather, male bus drivers were not allowed to wear shorts, but female bus drivers were allowed to wear skirts.  In protest, male bus drivers came to work wearing skirts arguing that the policy amounted to indirect sex discrimination.

So how does this work?  A person indirectly discriminates against another if the complainant possesses any of the protected characteristics other than pregnancy and maternity and:

• He/she applies the provision, criteria or practice (“PCP”) to the complainant and
• He/she applies or would apply the same PCP to persons who do not possess the same protected characteristics as the complainant, and that PCP puts or would put persons who possess the complainant’s protected characteristics at a particular disadvantage when compared with persons who do not possess it, and that PCP puts, or would put, this individual complainant at that disadvantage and the person cannot show that the PCP is a “proportionate means of achieving a legitimate aim”.

It is important to note that PCPs include not only criteria that an employer imposes openly, but also practices that or in fact applies without it being written down or otherwise made official.  It must also be the PCP which puts the complainant at a disadvantage, not some other factor which is self-inflicted.  For instance to comply with a PCP you might still be placed at a disadvantage.  It requires that the complainant would be put at a particular disadvantage by implication of the PCP.  It follows that under the current test, it is possible for a person to be put at a particular disadvantage by the PCP even though that person was in fact able however reluctantly, to comply with it.

The particular disadvantage point is important probably most so because it was intended to signify that the disadvantage must be substantial and not merely trivial or theoretical.  It is also important to note that unlike direct discrimination, a potential “defence” to indirect discrimination is justification where the person accused of getting direct discrimination can show that the PCP was a proportionate means of achieving a legitimate aim.

Employers should also be aware that the legal responsibility to prevent unlawful discrimination also extends to recruitment selection, training, promotion and dismissal policies and practices.

I was once interviewed for a paralegal position. I had to go through a typing test, a drafting test and an interview with the head of the department. In that interview I was told that:

“well…then there is the fact that you are not a native speaker…”

I did not get the job.

In hindsight, I think it is interesting that on both occasions, what was picked up on was the fact that I was Swedish and/or not a native speaker. Perhaps people have caught on to the fact that you could not for instance say,

“well…then there is that thing about you being a woman”

or

“well…then there is that thing about you being brown”.

Although I have little faith in completely eradicating discrimination at work, hopefully we are still learning and internalising what is acceptable and unacceptable conduct in the workplace.

What should employers do?

It is clear that employers have a legal responsibility to take such steps as are reasonably practicable to prevent unlawful discrimination for any of the above predicted characteristics.  It is important to note the words “reasonably practicable”.  One of the ways of doing so could be to have very clear equal opportunities policies and ensure that your managers and employees at all levels receive equality and diversity in their training. It is then the responsibility of every employee to ensure his or her own conduct conforms to the expected standards and reflects the policy statements. The aim of the policies is to encourage harmony and respect amongst individuals so as to promote good working practices with a view to maximising the performance and returns to the expected standards and reflects the policy statements.

If equal opportunities are not applied then valuable talent and potential are wasted. Moreover, when unfair discrimination takes place they bring about a climate of fear, insecurity and poor work performance. As well as being illegal it affects profitability and morale.  It is therefore vital that every employer and employee understands their respective responsibilities. Equal opportunities and diversity should be taken very seriously by employers and employees alike and wilful failure to apply the policies or evidence of discrimination will result in disciplinary action which may ultimately lead to dismissal. It is also important to address and, where appropriate, discipline staff who are crossing the line.  The worst thing that can happen is to create an environment where it is okay to throw around comments about somebody’s sexual orientation or their skin colour or their nationality etc. Employers must at the very least ensure that their employees know what is acceptable conduct and behaviour in the workplace.

Where to get help?

This may all seem quite daunting but there is a lot of help to be had. For instance, ACAS has produced a very useful guide delivering equality and diversity which gives practical guidance on how to monitor your workforce effectively.  ACAS recommends that an employer analyses their workforce to ensure that the equal opportunities policy regarding race is effective.  The examination should include:

• the number and relative proportions of employees by racial group,
• the distribution of these employees by skill and job grade,
• introduction programs and training leave,
• the policy and procedures for promotion.

Once you have analysed this kind of information, you may find that certain racial groups are being disadvantaged and that you may look into how to resolve the situation.

I also recommend employers to recognise when there is a problem and to ensure that your managers have a working knowledge of the basic concepts to avoid silly mistakes which could ultimately be potentially very harmful to your business. You and your managers should also be able to recognise when specialist advice is necessary and not be afraid to pick up the phone to an employment lawyer for legal advice and guidance.

What’s next in real life?

Unfortunately, discrimination is still an inherent part of many people’s daily working life.

A recent unique new study of an all female Cambridge college with around 1,000 alumni of Mary Edwards College were asked about the biggest problems they had faced in their lifetimes.  38% of them said that gender and equality, discrimination, non-supportive and difficult colleagues and managers, bias, bullying and undervalued work were the most troubling.  Most also said they felt that they had to over-perform because they are all female (Source: Article in the Independent dated Thursday 6^th March 2014).

I have noticed that in my profession for instance, there aren’t many women over the age of 30 working as solicitors or partners in private practice.  It is also not a coincidence that the Solicitors’ Regulation Authority (SRA) has recently carried out an extensive survey as part of their equality framework and equality objectives in line with the 2013/2015 SRA Strategic Plan.

Sadly, like many employees when discrimination occurs, I was not strong enough nor in a position where I felt comfortable enough to raise a grievance about the offensive statement that was made about my nationality.  Nevertheless, this situation caused me immense stress and made me a less productive employee. Therefore, both employers and employees should think carefully about what they say in the workplace because sometimes statements that are probably not very well thought through can really hurt somebody’s feelings and also potentially amount to unlawful discrimination.

If you as an employer do not address these situations when they happen and set out clear guidelines for what is acceptable behaviour and conduct the workplace, you may find yourself vicariously liable for the acts of your employees.  It should be noted that compensation for any successful discrimination claim is uncapped and a few words spoken in haste may end up costing you, not only the stress and management time spent on defending the claim, but also any compensation payable to the aggrieved employee.

As you can tell, discrimination at work is a topic that is very close to my heart, especially since I see myself as a little bit of a “social experiment” pushing the boundaries of prejudice and discrimination.  I was born in India, adopted by my Swedish family and lived in a small Swedish coastal town until I was 17.  I am ethnically Indian, but culturally Swedish.  I was very young when I was adopted and I therefore have no cultural or linguistic ties to India. International adoptions are very common in Sweden and, general teenage angst aside, I never really reflected over the fact that I was anything but a Swedish girl from Helsingborg that was adopted from Ahmedabad. I left Sweden as a fresh-faced 17 year old and moved to Hong Kong to go to school.  I then moved from Hong Kong to the UK to China, back to the UK then back again to China, to Turkey and then back to the UK again. It was during this journey that it all became very confusing for both myself and for people that I met who seemed surprisingly adamant on putting me into an ethnic or cultural “stereotype” or “compartment”.  In my experience, others want to look at me and say well,

“she looks Indian, so therefore she must be Indian”.

Or, conversely,
“but she’s got a Swedish name and she grew up in Sweden and therefore she must have one parent who is Swedish”.

After a while this does become tiring, and nowadays when people ask me where I am “really” from I tell them
“I’m from the south of Sweden, that is why I am so tanned!”

Joking aside, when it comes to discrimination at work there is always more than what meets the eye.