There have been some really interesting Tribunal outcomes recently, not least the discrimination case Sidhu v Exertis where Mr Sidhu won his claim and is now demanding over £6 million in damages from Exertis. Medical evidence suggests that the psychological damage of the discriminatory treatment by his former employer has led to him being unlikely to be able to work again.
If employers ever needed a reminder that they must manage diversity and inclusion matters fairly and proactively surely this is it – for the sake of the company but also to fulfil their duty of care to all employees.
I would imagine the shareholders of parent company DCC (a FTSE 100 company) will not be overly pleased with both the (yet to be decided) compensation level and the negative press. But they are a highly profitable company and can no doubt afford it. Mr Sidhu will need to live with the after effects of his employer’s actions for the rest of his life, with little prospect of a successful future career due to the way he was treated, according to press reports.
As I have a previous relationship with Exertis I will not go into further detail about the case and what lessons employers can learn. I will move on to another recent discrimination case won by a former employee. In Hawksworth v Greencore, Mr Hawksworth was an English delivery driver based at a depot in Scotland. He claimed that the depot manager had a dislike of him because he is English and he had been called, amongst other things, an ‘English b*stard’.
Mr Hawksworth was awarded £13,306 for race discrimination due to his treatment by the depot manager and other employees of Greencore even though he had only been employed for a few months at the time of his dismissal, some of which he had been signed off work with stress.
As is always the way there were other elements to the case but the judge found that Hawksworth had been racially harassed on the grounds of his nationality, which is included under ‘race’ in the Equal Rights Act. When summing up his findings he specifically related the compensation to the use of the word ‘English’ before an abusive term to justify the award.
This is not the first such case where prefacing an insult with an individual’s nationality has led to a finding of race discrimination and significant compensation being awarded. When running our ‘dignity and respect in the workplace’ course where we discuss where the bar should be regarding office banter we talk about a similar historic case where a Welsh builder received several thousand pounds in compensation due to being called a ‘Welsh b*stard’. Interestingly, the judge found that, although not ideal, insults were common on building sites and so words such as ‘b*stard’ wouldn’t normally result in a compensation award unless bullying could be proven, but because the insult was prefaced by ‘Welsh’ it was found to be race discrimination based on nationality.
On the course, with tongue very firmly in cheek we discuss whether in that case it would be safer to call someone a ‘Yorkshire b*stard’ as regionality is not included in the legislation!
The course is built around actual Tribunal cases, what the outcome was and what employers can learn from them. We find that talking about the cases in this way makes a rather dull subject interesting as everyone likes a good story, and to know what the outcome was. This then leads to some lively debates about what is and is not acceptable behaviour at work.
The ‘dignity and respect in the workplace’ course is our most popular course and receives great feedback. If you would like to discuss this, or any other training requirements please contact us. All of our half day courses cost £595, or £995 for 2 when they are run on the same day.
Another recent case concerning race discrimination further clarified the issue of employer vicarious liability. During a power cut, a contractor working in a HMRC building was walking towards a black employee down a dimly lit corridor and made a comment such as ‘good job you’re wearing that white shirt or I wouldn’t have seen you’. The employee took HMRC to Tribunal and was awarded £26,000 compensation of which £15k was for injury to feelings.
Even though the contractor was employed by a different company, HMRC was found to be vicariously liable for his actions. They argued that it was up to his employer to investigate / act regarding the incident, and they had made them aware of what had happened. The Tribunal disagreed, and found that HMRC had not done enough to ensure contractors on site behaved in the right way and so found against them. Although this seems harsh in some ways it is an important reminder to ensure contractors and other visitors behave appropriately on company premises.
The start point for any such cases is to consider whether employees’ actions would satisfy the legal definition of racial harassment. According to the CIPD, see www.cipd.co.uk the definition of harassment is:
Unwanted conduct related to relevant protected characteristics (i.e. sex, race, sexuality, disability, age etc) that:
- Has the purpose of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person: or
- Is reasonably considered by that person to have the effect of violating his / her dignity or of creating an intimidating, hostile, degrading humiliating or offensive environment for him / her, even if this effect was not intended by the person responsible for the conduct.
On the above course we discuss this definition and how to keep within it, especially the wording towards the end that makes it clear that an act can be found to be discriminatory even if the individual did not intend to offend the victim.
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In previous articles I have stated that, although I accept there is still work to be done, I believe the UK has evolved impressively from the attitudes of the 1960’s and 1970’s and is now a fabulously tolerant, welcoming and inclusive diverse society that does not have anything like the same discrimination issues as countries such as the US. I stand by that view and get so frustrated when certain groups portray us as a hotbed of discrimination.
I was therefore very interested to read the recent report by the Commission on Race and Ethnic Disparities (where all but one of the members are from an African, Asian, or Caribbean background) regarding discrimination in our great country. They came to a similar conclusion and I would strongly recommend reading their report that can be found at:
Predictably, their report was described as controversial and attacked in very strong terms by certain groups who view our country and society in a way I simply do not recognise.
It is important to be clear that the report did not state that racism no longer exists in the UK as that is clearly not true and we should continue to evolve and work on this with the same fervour that we have done for the last few decades. Its main finding was that racial inequalities in education and employment have narrowed, and they quoted statistics that clearly show this to be the case. I really do wish that we were given more credit for this progress – whilst continuing to work towards an even more diverse, inclusive and welcoming country.
Interestingly, the report found that poverty is a significantly greater influence on educational attainment and employment success than race and, although it is controversial to say this, from what I have read there is now a case for focusing more of our efforts to reduce inequality by supporting poor white communities in addition to continuing to support areas of high ethnic minority population as the report found clear evidence that it is these sections of society that seem to have been the ones falling behind in recent years. For example, data shows that poor white boys achieve the lowest GCSE grades of all categories, and white students were the least likely of all racial groups to go to university.
Regarding work prospects post education, the report found that Indian and Chinese employees earn ‘notably more’ than their white counterparts, and – surprisingly if the protestors are to be believed – the pay gap between ethnic minority and white workers has narrowed to 2.3 percent.
As stated above though, it cannot be denied that there is still significant work to do to support ethnic minority communities. It is in crime related matters that the report found the greatest disadvantages to non-white UK citizens, with black people three times more likely to be arrested than white people. However, reassuringly the evidence showed that juries in the UK are not more likely to convict ethnic minority defendants compared to white.
Shockingly but perhaps predictably, members of the Commission on Race and Ethnic Disparities who wrote the report have received death threats, abuse at work, and disgraceful treatment on social media from those who view our country as highly racist even though they provided clear evidence that justifies their findings.
The final subject in my rant about discrimination related matters is the current situation regarding trans rights. It seems to me that we are tying ourselves in knots over the rights of the trans community and it is now so confusing you need to be a human rights lawyer to know what you can and can’t say – or think.
Eighteen months ago I was very confident advising customers in this area as the law, best practice and what support to give to individuals both whilst going through the incredibly difficult process of transition, and afterwards, seemed pretty clear.
But recent articles and legal cases (not necessarily employment related but still relevant to employers) mean it is so hard now to distinguish between the rights of women (if I’m allowed to use that term, please don’t ‘cancel’ me!), lesbians and trans females – especially when you throw religious and philosophical beliefs into the mix.
I have to admit that whilst I am strongly in favour of actions to support the trans community I am really quite uncomfortable about issues such as the need to change the term ‘breast feeding’ to ‘chest feeding’, teachers not being allowed to say ‘boys and girls’ and the outcry against JK Rowling for expressing the view that only women menstruate. And don’t even get me started on the ‘need’ to have gender neutral toiIets, which I personally find abhorrent and incredibly embarrassing for all concerned not to mention the obvious risk caused by predators.
When the highly influential charity Stonewall seems to be in open warfare with lesbians – who they were established to represent – over female / lesbian / trans rights it’s time to take a breath.
There is a current case where a judge has been tasked with deciding legally whether sex is different to gender. Hopefully that judgement will give some clarity and improve our understanding of what is and is not acceptable but I doubt it. I fear it may just complicate things further for the average employer, manager and HR specialist and will lead to individuals with quite extreme views receiving an even bigger platform to influence our behaviours in ways many reasonable and tolerant people find uncomfortable.
I’ve not advised a company for a couple of years regarding trans employees and, whereas I would feel very confident to guide them on how to support trans employees, especially when they are going through some of the incredibly tough periods they suffer during transition, if there’s a complaint regarding trans rights I will probably need to take specialist employment law advice as the issue is now too complicated for me to be confident I would advise correctly without it.
Fortunately, through our subscription to the CIPD’s excellent HR-Inform service we get ‘free’ legal advice from experienced employment law barristers on such issues, but when a HR professional with over 20 years of in depth experience regarding discrimination and other related issues can’t understand the current legal situation surely things have gone too far and need clarification and some common sense?
Rant over! I hope I have not offended anyone with my above views. I felt it needed saying.
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