The past few months have seen several employee discrimination cases hit news headlines.
As a reminder, it is unlawful to discriminate against a person in relation to nine “protected characteristics”: age; disability; pregnancy and maternity; race; religion or belief; sex; sexual orientation; gender reassignment; and marriage and civil partnership. If a successful claim is brought, unlike with other claims, there is no maximum cap on the amount of compensation that an employer can be ordered to pay.
These cases are a reminder that not only are there legal implications in such cases, but with employment tribunal hearings being public, and tribunal judgments easily accessed online, there can also be publicity around the case which draws unwanted attention to mistakes made.
In Duffy v Barnet, Enfield and Haringey Mental Health NHS Trust, a tribunal found that comments made at work to an employee regarding her pregnancy and plans to return to work following maternity leave amounted to pregnancy discrimination. The employee was asked by a colleague if she had told her managing director that she would not be returning to work after her maternity leave (despite this not being the case) and was accused of planning her pregnancy in order receive preferential treatment to get a promotion. Separately, the employee’s manager told her that he wanted to discuss her “future plans” whilst nodding toward her stomach. This was judged to be a “clumsy enquiry”, but still one that amounted to discrimination, especially as this conversation happened a long time before the employee was required to tell her employer about her plans to return to work.
In another case of pregnancy discrimination (Topping v Stepping Stones Nursery), a nursery employee was questioned by her employer on whether it was “a good idea” for her to keep her baby. The Tribunal found that the employee was unfairly dismissed and discriminated against because of her pregnancy including that the employee was forced to reduce her hours and was ultimately made redundant shortly after announcing her pregnancy.
In Macken v BNP Paribas, a female banker successfully claimed for direct sex discrimination, victimisation and equal pay and was awarded over £2 million compensation in one of the largest awards ever made by a UK tribunal. The tribunal found that over many years the employee was paid significantly less than her male counterparts who performed the same role. The employee was also subject to sexist behaviour and remarks, including a witch’s hat being left on her desk by male colleagues after returning from the pub. On top of the huge compensatory award, the bank was ordered to complete an equal pay audit, the results of which are to be provided to the tribunal by 30 June 2022.
In Robson, v Clarke’s Mechanical, a tribunal found that an unfair redundancy process and a derogatory nickname given to a 69 year old plumber by his colleagues amounted to age discrimination. The employee was dismissed as part of a redundancy exercise where he received a low performance score based on fabricated scoring criteria. It was evident that despite the employee’s strong performance and skill, he was selected for redundancy because of his age. The employee was the oldest worker at the company and referred to as “Half-dead Dave” by colleagues and bosses. This case serves as yet another example of misguided “banter” being exposed as discrimination.
In Drummond v Lloyds Bank, an employee sought to bring a claim for discrimination against white heterosexual males. The employee had described instances in which he believed he was treated unfavourably compared to female colleagues and those who were not white British. The claim was found by a tribunal to be brought out of time but is a reminder that discrimination claims can be brought by all employees.
It goes without saying that employers should have thorough policies and procedures in place both to avoid discriminatory conduct in the first place and to deal with any allegations of discrimination that arise. Training can go a long way to making employees more mindful of what comments and jokes are and are not appropriate at work, which, as we can see from these cases, can cause some of the worst upset for employees who are victims of discrimination, as well as come across badly in front of a tribunal.