THE WOMEN IN BUSINESS TOOLKIT: Discrimination, Informal and Formal Grievances and The Equality Act (2010)
THE WOMEN IN BUSINESS TOOLKIT All of the Chapters so the Women in Business Toolkit can be found online on the Women in Business Toolkit section of the Birmingham Chamber of Commerce Website along with an online version of this document. Click the links below or see www.Birmingham-Chamber.com/WIBToolkit for more information.
Having a family and caring for dependents
Promoting Best Practice Mentoring and Sponsorship
Maternity Leave and Pay
Unconscious Bias Training
Paternity Leave and Pay
Transparency in Pay and Promotions
Adoption Leave and Pay Shared Parental Leave and Pay The Right to Request Flexible Working
Promoting Diversity Through Recruitment Flexible Working
Statutory Parental Leave
Diversity Policies and Strategies
Your Rights in the Workplace
Making the Case
Discrimination, Informal and Formal Grievances and The Equality Act (2010)
Making the Case: How to Construct a Business Case and Useful Statistics
Taking a Case to Employment Tribunal
INTRODUCTION: This handy little guide offers you some concise and, we hope, highly practical and useful information on Discrimination, Informal and Formal Grievances and The Equality Act (2010). This guide, brought to you by the Greater Birmingham Chambers of Commerce, is part of the Women in Business Toolkit. This toolkit aims to help inform and empower women and encourage best practice in businesses, helping make the UK a forward thinking, attractive place to work.
Connecting you to opportunity... Whilst useful and informative, it does not aim to provide encyclopaedic knowledge or in-depth legal advice about the topics in question, merely an introductory account. If you have any questions about any of the topics covered in this document please do speak to your HR department/the member of staff responsible for this area or seek professional advice The Greater Birmingham Chambers of Commerce features some of the UK’s oldest and largest Chambers. It has nearly 3,000 member companies that employ over 200,000 plus affiliate organisations representing 15,000 people. It offers extensive services to industry and commerce, having served the interests of business for nearly three centuries, promoting trade locally, nationally and internationally.
People with a disability or long-term illness are over twice as likely to face bullying or harassment in the workplace as non-disabled people
of people believe refusing a job to an applicant because they are over 50 is wrong but..
There were...
Claims accepted by employment tribunals between April 2011 and March 2012...
..of people believe this happens often Amongst mothers returning from maternity leave...
28,800 cases concerning equal pay
4,800 cases concerning race discrimination
3,700 cases related to age discrimination
10,800 cases related to sex discrimination
Were replaced by their maternity cover
Ethnic Minority Women seeking work in the UK continue to face discrimination and unemployment rates far above national averages
WHAT IS THE EQUALITY ACT 2010? The Equality Act (2010) is a single piece of legislation that legally protects people from discrimination in the workplace and society in general. Under this Act it is illegal to discriminate against someone because of:
Their age
Their sex
They are pregnant or having a child
They have a disability
They are or are becoming a transsexual person
They are married or in a civil partnership
Their race (including colour, nationality, ethnic or national origin)
Their religion, belief or lack of a religion or belief
Their sexual orientation
It also protects people from discrimination as a result of:
Being associated with someone who has a protected characteristic
If they have complained about discrimination or supported someone else’s claim
You are protected from discrimination on these grounds at work, in education, as a consumer, when using public services, when buying or renting property and when a member or a guest of a private club or association.
WHAT IS DISCRIMINATION? There are four different kinds of discrimination:
1. Direct Discrimination This involves treating someone less favourably than others because they have a protected characteristic (e.g. they are disabled)
2. Indirect Discrimination This occurs when rules or arrangements are put in place that apply to everyone, but place someone with a protected characteristic at an unfair disadvantage (e.g. scheduling meetings outside of normal working hours that parents with child caring responsibilities cannot attend)
3. Harassment This is unwanted behaviour that violates a person’s dignity or creates an offensive , hostile, humiliating or degrading environment for them, linked to a protected characteristic (e.g. jokes concerning sexual orientation, name calling or unwarranted exclusion)
4. Victimisation This happens when someone is treated unfairly because they have complained about discrimination or harassment (e.g. refusing holiday requests or not giving an individual a pay rise because of a complaint)
The Equality Act (2010) prohibits discrimination in the workplace based on protected characteristics, including in the following areas:
Dismissal
Pay and Benefits
Training
Employment Terms and Conditions
Promotion and Transfer Opportunities
Recruitment
Redundancy
In addition, it requires employers to make reasonable adjustments for disabled job applicants and employees. This includes considerations around:
Application forms (e.g. providing them in braille or audio)
Aptitude tests (e.g. allowing extra time)
Interview arrangements (e.g. wheelchair access or communicator support)
Ensuring appropriate workplace facilities are available
Please Note: Employers may be able to defend discrimination claims by claiming Objective Justification. Click here for more information.
WHAT CAN I DO ABOUT IT? If you feel that you have suffered discrimination in the workplace there are two main ways of dealing with it:
1)
Seek an apology or resolution direct from your employer.
2)
Take your claim to an employment tribunal.
The rest of this guide will refer to registering informal and formal grievances within your organisation. If you believe that you have been treated unfairly or your employer has broken the law you can take a case to employment tribunal. For more information on taking a case to employment tribunal click here or see the Employment Tribunals chapter of the Women in Business Toolkit on Birmingham Chamber of Commerce website: www.Birmingham-Chamber.com/WIBToolkit.
Remember: if you are considering taking your employer to employment tribunal it may be very beneficial for you if you have raised the issue as a formal grievance first.
Please Note: The Equality Act (2010) only applies to incidents that happened after the Act came into force (October 2010). Incidents that took place before then will be subject to the requirements set out in old legislation (e.g. Sex Discrimination Act (1975), Race Relations Act (1976), Disability Discrimination Act (1995). See www.gov.uk for more information
RAISING AN INFORMAL GRIEVANCE If you feel that you have been treated unfairly at work, especially is it is because of your gender, race or another protected characteristic, and it is affecting you negatively personally or professionally you should talk to your employer.
If your concerns are not linked to a protected characteristic you will be unable to make a complaint under the Equality Act 2010. However, if certain behaviours or practices in your workplace are making you uncomfortable or affecting your work, you should still raise the issue with your employer as a grievance.
To raise a grievance informally you can:
1) Discuss it with your line manager 2) If you have one, contact your HR or personnel department to ask for some informal advice It is best to be as constructive as you can at this stage and try to resolve the problem as amicably as possible. You can also seek advice from organisations including: Advisory Conciliation and Arbitration Service (Acas): www.acas.org.uk Equality Advisory Service: www.equalityadvisoryservice.com Your Trade Union (if you are part of one).
WHAT NEXT? All being well after raising your grievance informally you and/or your line manager/HR department will speak to the members of staff involved/responsible for this area and resolve the issue. However were this isn’t the case you can escalate the issue by registering a formal grievance. You can do this by: Step 1: Request a copy of your employer’s grievance policy This should contain key information such as who you should address grievances to and how they will handle your complaint. Not all companies have grievance policies and, in rare circumstances, some who do may be unwilling to share theirs. If this is the case simply address your communications to the member of staff you think would be most likely to handle such issues. Step 2: Write a formal grievance letter You will now need to write a letter (or email) to your employer stating that you want to raise a formal grievance. This will need to include:
What happened and the dates it happened on, starting from the first (oldest) event and working chronologically up to the most recent event.
The names and job titles of the people involved, including witnesses.
What you have already done to try and resolve the conflict informally.
If it is linked to your grievance, state that what you think happened was discrimination under the Equality Act 2010.
TOP TIPS Some top tips to remember when registering a formal grievance:
1. Phrase the issue in as constructive a light as possible. It’s best to get your employer on your side and seeing the situation from your point of view, rather than create unnecessary conflict.
2. Keep copies of all of your correspondence, including everything you send to your employer.
3. Make sure you get acknowledgement from your employer that they have received your grievance letter (e.g. ask them to send you a response confirming they have received your letter/email).
4. Number your paragraphs. This will help make things simpler when you and your employer refer to parts of the letter in the future.
5. Keep your letter as concise, to the point and objective as possible. You may well be upset by the behaviour you have encountered but it’s best to stick to reporting the facts as clearly as you can.
6. Record all of your evidence. Talk to your colleagues, especially those who have witnessed or experienced the same or similar incidents and find out if they’d be willing to support you at a future date.
Step 3: Attend a meeting with your employer Next your employer should respond by offering to meet with you to discuss your grievance and ways of resolving it. If they do not do this promptly remind them and take note of the amount of time that has elapsed between submitting your first grievance letter and being offered a meeting. You have the legal right to bring someone with you to this meeting. This could be a trade union representative or perhaps a colleague who has witnessed the incident(s)/similar behaviour/is aware of your grievance. As ever it’s best to remain as professional, objective and reasonable as possible in these meetings. Anything involving a grievance can get quite heated but avoiding any unnecessary conflict is generally best in the long run. All being well this meeting will result in an agreement between you and your employer concerning how to resolve the issue. Do bear in mind that some compromise may be necessary. If your are very unhappy with the outcome of this meeting and your grievance concerns some form of discrimination, you may be able to take your complaint to an employment tribunal. Please click here for the Women in Business Toolkit chapter on Employment Tribunals or go to the www.Birmingham-Chamber.com/WIBToolkit.
Please Note: In order to be able to take your case to employment tribunal you must refer any discrimination to the tribunal within three months, less one day, of the day the incident happened. Do bear this time limit in mind when registering a grievance or considering what to do about discrimination.
WHAT IS A DISCRIMINATION/PROHIBITED CONDUCT QUESTIONNAIRE? If you feel that you have been discriminated against under the Equality Act 2010 (e.g. that you have been discriminated against as a result of a characteristic mentioned in the Equality Act 2010 or unfairly dismissed) you can ask your employer to fill in a Discrimination and Other Prohibited Conduct Complaints Questionnaire. This form can help you get more information from your employer to help you understand whether they have behaved illegally/gather evidence to support your claim. It comes in two parts: in the first part you write down what you feel happened, who was responsible, why you think it was unlawful and what questions you would like your employer to answer. The second part is for your employer to fill in and return to you. This discrimination questionnaire can be submitted for consideration by an employment tribunal if you decide to take your complaint further. When filling it in make sure you follow the top tips on page 11 - try and keep it as concise, objective and factual as possible. Your employer is not required to fill in the form, however if they don’t do it/fail to return it within 8 weeks of receiving it an employment tribunal can ‘draw inference’ from this (i.e. it won’t look good). For a copy of the Discrimination and Other Prohibited Conduct Complaints Questionnaire click here or search for it on www.Gov.uk. Click here or see the Employment Tribunals chapter of the Women in Business toolkit on the Chamber Website www.BirminghamChamber.com/WIBToolkit for more info on Employment Tribunals. Please note: Discrimination/Prohibited Conduct Questionnaires will be abolished from April 2014 (Enterprise and Regulatory Reform Act, 2013).
WHAT IS MEDIATION? Mediation is a way of attempting to resolve disputes without having to take official legal action. It involves a trained mediator, often brought in from outside of the organisation, facilitating dialogue between the parties in dispute in order to try and come to an agreement that is acceptable for everyone. Mediation is a voluntary process and not something that your employer has to offer or you have to accept. However, if you are involved in an on-going dispute with your employer (perhaps relating to a formal grievance you have raised) you may want to suggest that you employer calls in a mediator. Mediation can help:
Rebuild or maintain positive relationships between employer and employee
Reach an agreement out of court
Save time compared to employment tribunal processes
If you are unhappy with something that has occurred in your organisation that you do not feel has been resolved through raising a formal grievance, but do not wish to leave your job or take legal action this could be a good option for you.
CASE STUDY: Discrimination and Mediation
Name: James Cull Job Role: Managing Director Organisation: Decisive Mediation Case Study: Offering Medication services in a discrimination case.
Decisive Mediation recently assisted a well known organisation that had experienced discrimination.
also one of the company directors. Alex began to lose weight and show signs of anxiety, including panic attacks.
A training officer, called Alex, Knowing he was facing on-going began a sex change and then discrimination Alex sought advice found he was being alienated by from the HR department. On hearing his colleagues. these experiences the “It would be an Alex had been HR manager very happy in opportunity to educate recognised Alex his role but this and inform employees potentially had a case changed as his for constructive too” colleague’s dismissal. Explaining behaviour became increasingly the seriousness of the issues to Alex hostile. This included being the HR manager also said as he excluded from team meetings, was the only person in recent informal conversations and even memory going through gender retea and coffee rounds. Most assignment this negative situation seriously this behaviour seemed could be turned into an opportunity. to be encouraged by the With Alex’s permission the HR departmental head – who was manager asked if he would be
willing to take part in mediation. Supported by a professional and experienced mediator Alex could assert his Rights and articulate needs to colleagues. It would be an opportunity to educate and inform employees too. Alex agreed as he saw it as a way of preserving working relationships.
stress. Alex stated that he had lost respect for the director as more should be expected from him. The director acknowledged his behaviour had been very poor and stated he had gained renewed respect for Alex as he recognised the courage it took to sit down and talk through these concerns.
Supported by Decisive Mediation, Alex took part in the mediation. This took place over two days and allowed him to speak to colleagues and explain the results of their actions. Alex explained he had felt embarrassed enough about the situation without them adding to the difficulties. He found the individual mediation with the director the most cathartic and beneficial: Alex explained directly to him that his behaviour had been appalling and led to greater
A month after this process Decisive Mediation undertook a check-up and found the mediation had strengthened working relationships and promoted understanding between Alex, colleagues, and in particular the director. Alex felt the discrimination had ended and the transition back to respected and accepted colleague was complete, even if the journey to becoming female was just starting.
About Decisive Mediation:
Decisive Mediation specialises in resolving workplace conflict via professional mediation and communications training. Decisive Mediation is passionate about keeping workplaces and teams happy and productive, with everyone focussed on success. They have had success at helping a range of businesses, large and small, resolve conflict. If you need to resolve people problems then speak to James for free, in confidence, and without obligation - call now on 0121 688 0909 or visit http://www.decisivemediation.com
JARGON BUSTER: CONSTRUCTIVE DISMISSAL This occurs when an employer’s behaviour becomes so unacceptable that the employee has no choice but to resign. An employee who has faced constructive dismissal has the legal Right to make claims against their former employer. DIRECT DISCRIMINATION Treating someone less favourably than others because of a protected characteristic (e.g. they are disabled) EMPLOYMENT TRIBUNAL Independent judicial bodies designed to resolve disputes surrounding employment rights between employers and employees. FORMAL GRIEVANCE Raising a complaint within your organisation using official channels. INFORMAL GRIEVANCE Raising a complaint informally within your organisation to attempt to resolve the situation without making an official request. INDIRECT DISCRIMINATION When rules or arrangements are put in place that apply to everyone, but place someone with a protected characteristic at an unfair disadvantage (e.g. scheduling meetings outside of normal working hours that parents with child caring responsibilities cannot attend) HARASSMENT This is unwanted behaviour that violates a person’s dignity or creates an offensive, hostile, humiliating or degrading environment for them, linked to a protected characteristic (e.g. jokes concerning sexual orientation, name calling or unwarranted exclusion).
MEDIATION Mediation involves a mediator, often external to the organisation in question, facilitating discussion and dialogue between the parties in conflict with the aim of reaching a resolution. PROTECTED CHARACTERISTICS These are the characteristics described in the Equality Act 2010: Age, Race, Disability, Sex, Sexuality, Marriage and Civil Partnership, Pregnancy/Maternity, Gender Reassignment and Religion or Belief. It is illegal to discriminate against someone based on one of these characteristics. VICTIMISATION This happens when someone is treated unfairly because they have complained about discrimination or harassment (e.g. refusing holiday requests or not giving an individual a pay rise because of a complaint)
USEFUL LINKS: The UK Government’s Website: https://www.gov.uk/raise-grievance-at-work This section of the Gov.UK website outlines how you can raise a grievance at work. For more information search ‘grievance’, ‘discrimination’ or ‘Equality Act 2010’ on the website search engine. The Citizens Advice Bureau Advice Guide Website: http://www.adviceguide.org.uk/england/work_e/ work_problems_at_work_e/dealing_with_grievances_at_work.htm The Dealing with Grievances at Work section of the Citizens Advice Bureau Advice Guide Website provides information for employees on what to do if they have a complaint about their work, workplace or a colleague. The Equality and Human Rights Commission Website (EHRC): http://www.equalityhumanrights.com/advice-and-guidance/your-rights/ using-your-rights/workplace-problem-solving/ This section of the EHRC website offers an array of advice on how to solve problems in the workplace. The Advisory, Conciliation and Arbitration Service (ACAS) Website: http://www.acas.org.uk/index.aspx?articleid=2179 The ACAS Discipline and Grievances at Work guide offers advice for employers on best practice ways of dealing with grievances. The Civil Mediation Society Website http://www.civilmediation.org/ The Civil Mediation Society Website provides an abundance of information on workplace mediation.
SOURCE OF STATISTICS
People with a disability or long-term illness are over twice as likely to face bullying or harassment in the workplace as non-disabled people EHRC (2010) How Fair is Britain?
of people believe refusing a job to an applicant because they are over 50 is wrong but..
There were... ..of people believe this happens often Claims accepted by employment tribunals between April 2011 and March 2012...
NatCen (2010) British Social Attitude Survey, 26th Report
Amongst mothers returning from maternity leave...
28,800 cases concerning equal pay
3,700 cases related to age discrimination
Were replaced by their maternity cover Slater and Gordon (2013) Maternity Discrimination Survey
4,800 cases concerning race discrimination
10,800 cases related to sex discrimination
Ministry of Justice (2012) Employment Tribunal Statistics 20l1-2012
Ethnic Minority Women seeking work in the UK continue to face discrimination and unemployment rates far above national averages All Parliamentary Group on Race and Community (2013) First Report of Session 2013-2013
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