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 6th 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.
Sofie speaks fluent Swedish and Chinese and graduated with a Chinese & Politics honours degree from School of Oriental and African Studies in 2005. She then spent a few years living and working in China before returning to the UK to qualify as a solicitor. In her free time she enjoys scuba diving, boxercise, running and travelling.
She can be contacted at +44 (0)1273 204411 or by email to sofie@engleharts.co.uk
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