If you believe you have been treated unfairly due to workplace discrimination – or you have been adversely affected due to witnessing discrimination at work – you may be able to claim compensation from your employer, even if your employer was not directly responsible for the discriminatory act.
Employers must comply with the Equality Act 2010 to ensure that no employee is subjected to any prohibited discrimination. In order to ensure that no employee is treated unfairly, employers should implement an equality policy and create an action plan to support the policy. The action plan should include employee training, employee monitoring and informing employees of how breaches of the policy will be dealt with.
The failure to implement and enforce an equality policy is not in itself grounds for workplace discrimination claims. However, if you have been treated unfairly due to discrimination at work and your employer has failed to take appropriate action or respond appropriately to a complaint, you should seek professional legal advice about workplace discrimination claims.
Have You Been Treated Unfairly at Work?
In order to determine whether you have been treated unfairly at work due to workplace discrimination, it is important to understand what constitutes discrimination at work. The criteria for establishing workplace discrimination is complicated and the alleged discriminatory act must have resulted in you being treated less favourably. Answering these three questions is a good place to start:
- Where you discriminated against because of a protected characteristic?
- At what stage in your employment did the discriminatory act occur?
- How was the discriminatory act conducted?
A protected characteristic is one of the nine characteristics identified by the Equality Act 2010. The nine characteristics are age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex and sexual orientation. If you feel you have been discriminated against for any other reason, you may still be eligible to make an employment law claim and should speak with a solicitor for advice.
Workplace discrimination can happen at any stage from the submission of a job application to a request for references after leaving your job. In relation to workplace discrimination claims, any legal action you take must be started three months less one day of the discriminatory act occurring. If you leave it longer than three months to claim for discrimination at work without a justifiable reason which the tribunal will accept, your claim will be time-barred and you will forfeit your right to pursue the claim.
How the discriminatory act was conducted is important because there are some scenarios in which employers are protected by the law. These include certain direct age discrimination practices and indirect discrimination practices where it can be shown that there is an objective justification for the discrimination – for example requiring that applicants for active fire service positions undergo physical tests. This would be regarded as a proportionate means of achieving a legitimate aim.
Associative Discrimination and Perceptive Discrimination
In addition to direct and indirect discriminatory acts, there is also a distinction between associative discrimination and perceptive discrimination at work. Associative discrimination is where you have been treated unfairly because of another person´s protected characteristics – for example if a job offer is withdrawn after it is discovered you have a disabled child with complicated care arrangements. This may well be regarded as unlawful workplace discrimination under the Equality Act 2010.
Perceptive discrimination occurs when somebody has treated you unfairly because they believe you have a protected characteristic which in fact you do not have. Examples of perceptive discrimination include denying a promotion to an employee because it is wrongly believed they have a disability that would prevent them from adequately performing in the role. Another example is denying a position to a job applicant because their name implies they have a certain belief system.
Certain protected characteristics are excluded from the Equality Act 2010 when making workplace discrimination claims relating to associative discrimination and perceptive discrimination at work. This can make it difficult to claim compensation from an employer if you have been untreated fairly because it was wrongly believed you were pregnant or because you are in a legal civil relationship with somebody wrongly believed to have a protected characteristic.
There could be alternate motives for making workplace discrimination claims in these circumstances. For example, a woman wrongly perceived as being pregnant could make a claim for discrimination at work based on her sex. However, associative discrimination and perceptive discrimination at work are particularly complicated areas of employment law, and – in these circumstances – you should always seek professional legal advice.
Harassment, Bullying and Victimisation at Work
Although there is a distinction between workplace discrimination and harassment, bullying and victimisation at work, the terms are frequently interchanged. This can lead to confusion over the grounds for claiming compensation and the process for making a claim. Generally, workplace discrimination is regarded as treating somebody unfairly because of a protected characteristic. Harassment, bullying and victimisation at work have similar – yet distinct – definitions.
Harassment at Work
Discrimination by harassment at work can be any unwanted behaviour that makes someone feel intimidated, degraded, humiliated or offended.
Bullying at Work
The impact of bullying at work can be the same as harassment, but unless the bullying you experience amounts to conduct defined as harassment in the Equality Act 2010 it is not possible to make a complaint to an Employment Tribunal about it. Other courses of action exist may exist under employment law and you should seek advice about the possible action you can take.
Victimisation at Work
The term victimisation at work broadly refers to any unfair treatment you receive due to making a formal complaint against your employer under the Equality Act 2010. The term can also apply if you are physically or verbally threatened when it is suspected you will might make a complaint, or when you intend supporting a colleague who is making a complaint.
The Process for Claiming Discrimination at Work
The process for claiming discrimination at can be a bit daunting for claimants unfamiliar with the process. It is also important to consider what you want to achieve from taking legal action before you start the process for claiming discrimination at work. This could vary from being accepted for a position you were previously denied to recovering compensation for the injury to your feelings and your loss of income.
Usually, the first stage is to try to resolve the issue through the employer´s grievance procedure or other internal dispute mechanism. The employer or manager should keep an open mind about your allegations and ask you about evidence of your workplace discrimination claims as well as trying to establish any evidence that undermines them. If you fail to achieve a satisfactory resolution in this stage, you must inform ACAS – the Advisory, Conciliation and Arbitration Service – of your intention to make a formal claim for discrimination at work via an employment tribunal and you may want to seek advice before contacting them.
ACAS is an organisation that will not take sides in a dispute, but will attempt to find an agreeable solution through its Early Conciliation Service. An ACAS counsellor will help you get a clearer idea of the strengths and weaknesses of your allegations, and explore options for settling your claim to avoid the time, expense, risk and stress of an employment tribunal hearing. Around 75% of workplace discrimination claims are settled or withdrawn during the ACAS process for claiming discrimination at work. Those that are not resolved go forward to be heard by an employment tribunal.
The final stage of the process for claiming discrimination at work is the tribunal hearing. Although following the procedures of a court, the hearing is less formal and usually takes place in front of a three-person panel. The panel will hear evidence supporting your claim and disputing your claim and then make a decision based upon the information it has been presented with. If the panel finds in your favour, it has the following options available:
If you are still employed by the employer against whom you are making a claim, the tribunal may require your employer to take a specific course of action within a specific time frame to remedy the situation.
If you were denied a position at the company due to workplace discrimination, the tribunal may recommend that you are offered a position if the tribunal thinks that the previous history between you and the company can be overcome.
Most frequently, the tribunal will make an award of compensation for discrimination at work. The amount of the compensation award will vary according to the facts of your case and will be designed to compensate you for the injury you have suffered.
Proving Workplace Discrimination
Workplace discrimination claims can be contested even when you believe that an obvious discriminatory act has occurred. In this case, an employment tribunal may need proof of your allegations before finding in your favour. There are several types of proof you should prepare whenever possible.
We recommend that all claimants maintain a diary recording any discriminatory act(s) conducted by an employer or a person who had authority over you at work. You should keep copies of any relevant letters, emails or memos that have been exchanged between you and your employer and write down the details (including the time and date) of any relevant conversations or telephone calls you have with your employer or the person alleged to have committed the discriminatory act(s).
Whenever possible you should ask a colleague who has witnessed the alleged discriminatory act(s) to support your claim with a witness statement. The witness statement has to be relevant to your claim and not a character reference or a statement of how they have been treated at work. The witness will have to attend the employment tribunal hearing to confirm the truth of their statement, and their statement might be compared to witness statements supporting the employer´s case for consistency.
Finally, it may also have to be proven that you have been treated unfairly in relation to an employee in the same or in a similar position to you who does not have the same protected characteristic. This person is known as a “comparator” and he or she does not necessarily have to support your claim. They are just a benchmark against which it can be proven that you were unfairly treated due to discrimination at work. A solicitor will be able to help you identify a comparator for your specific situation.
Further Information about Workplace Discrimination Claims
No two workplace discrimination claims are the same because of the different ways in which protected characteristics are treated and the different types of discriminatory acts that can take place. There may be issues regarding whether the discriminatory acts were direct or indirect, and also if you suffered associative discrimination or perceptive discrimination at work.
Therefore, it is recommended that you seek professional legal advice specific to your individual circumstances before taking any action that might result in a claim for discrimination, harassment, bullying or victimisation at work. Furthermore, as there is a strict time limit for making workplace discrimination claims, we recommend that you speak with a solicitor at the earliest practical opportunity.
Employment Settlement Agreements
Employment settlement agreements are frequently the best way to resolve individual workplace disputes if a clean break is wanted. Most often proposed by an employer, a “settlement agreement” may be offered during a disciplinary or grievance procedure, or as the result of mediation.
Typically, an employee settlement agreement will draw a line under a workplace dispute – or signal the termination of an employment contract – with the employee receiving a payment of compensation. In return, the employee waives their right to make a claim against the employer at an employment tribunal or at court for the specific dispute resolved by the agreement.
All agreements of this nature have to be voluntary and, in order for an employee settlement agreement to be legally binding, the employee must have received professional legal advice from a qualified independent advisor – such as a trade union official or settlement agreement solicitor. The cost of the legal advice is usually borne by the employer.
Employment settlement agreements offer advantages to both the employer and the employee. However, there are certain conditions that have to be met in order for the process to work satisfactorily. Therefore, whereas this article examines employment settlement agreements in general, it is advisable to speak with a settlement agreement solicitor to discuss your individual situation.
How Employment Settlement Agreements Work
Employment settlement agreements are agreements between individual employees and employers. The process for reaching an agreement is the same regardless of whether the dispute is resolved with the termination of an employment contract, or the employee continues working for their employer – for example, if the dispute concerns holiday pay.
The process can start at any time during a working relationship and does not necessarily have to be part of a disciplinary or grievance procedure. Often it will start informally with a discussion between an employer and employee about the possibility of a settlement agreement and, if both parties are prepared to consider the idea further, a written offer would follow outlining the terms of the proposal.
Usually employees are given a reasonable amount of time to consider the proposal and/or to negotiate revised terms. Once the final terms are agreed, any employee settlement agreement will usually cover:
- The date employment terminates.
- How much will be paid in lieu of notice and outstanding holidays (if applicable).
- How much the settlement payment amounts to and when it will be paid.
- That the employer will provide a professional reference if requested.
- That the terms of the agreement will remain confidential.
- That any proceedings already brought by the employee will be withdrawn.
- That the employee´s legal costs will be paid by the employer.
If no agreement is reached, any discussions, offers or terms relating to the agreement cannot usually be presented as evidence in a subsequent employment tribunal or court hearing. The exceptions to this rule is when a proposed settlement is made “out of the blue” (i.e. the employee was not aware that a dispute existed).
What Happens if a Compromise Agreement is Breached?
A compromise agreement can be breached for a number of reasons. For example, the employer may fail to pay the amounts agreed in the settlement, or not pay them on time. An employee may disclose the terms of the agreement, or share them with somebody they were entitled to, who subsequently makes them public. In either event, the remedy is usually to claim breach of contract and damages at court.
However, there can be mitigating circumstances that would complicate the issue. For example, if an employee fails to adhere to the terms and conditions of their employment contract during the period of notice; or, if the employee has knowingly withheld information that would have influenced the terms of the agreement, a court would need to determine whether the breach of agreement was justified.
An Employee Settlement Agreement or Redundancy?
Although an employee settlement agreement could be used in a redundancy situation, it is not the same as a redundancy. In a redundancy situation – in which an employer has a diminished need for a certain number of employees or employee skillset – the employer is required to conduct a fair redundancy procedure before deciding which employee(s) to make redundant.
As an alternative to conducting the redundancy procedure, an employer may approach an employee with the offer of an employee settlement agreement. Employment settlement agreements of this nature usually have the incentive for the employee of a higher level of compensation than they would receive under a redundancy package or the ability to leave employment earlier. However, as with other types of employment settlement agreements, participation in the settlement is entirely voluntary.
Speak with a Settlement Agreement Employment Law Solicitor for More Information
If you are an employee who has been approached with the offer of an employee settlement agreement, or an employer considering making the offer of a compromise settlement, it is in your best interests to seek professional legal advice from a settlement agreement solicitor.
A settlement agreement solicitor will be able to guide you through the process as it applies in your particular situation and ensure that every element of the agreement is included in the final offer. The solicitor will also be able to provide draft employment settlement agreements, check that they have been completed within the Code of Practise on Settlement Agreements and conduct negotiations as necessary to ensure the process works satisfactorily for all parties involved.