ACAS has just published research in a 99 page report regarding the Employment Equality (Sexual Orientation ) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003. The research studied the impact of the above legislation on sexual orientation and religion discrimination at work claims.
Between 2004 and 2006 461 employment tribunal claims were brought regarding discrimination on the grounds of religion. In the same period there were 470 applications to an employment tribunal on the grounds of sexual orientation discrimination.
The sexual orientation claims were predominantly about allegations of bullying and harassment, mostly name calling and threats. There were also allegations of physical attacks and unfair treatment by managers.
As with Religion or belief cases, allegations of homophobic/ sexual orientation bullying and harassment were usually against one or two individuals, but often seemed to reflect a wider culture of homophobia within an organisation. This bullying and harassment lasted for up to 3 years. Claimants alleged that managers failed to stop what was happening or even joined in.
The religion or belief claims consisted of a variety of issues. These were mainly regarding working hours, time off and leave to follow religious practices.
Most sexual orientation claimants were lesbian or gay. Two-thirds were men. 70% of the respondents were private sector employers. Most claims in the public sector were brought against organisations in the criminal justice system and local authorities.
The effects of the bullying and harassment led to physical and mental problems, pushing some to contemplate suicide.
In larger organisations the grievance procedures are usually followed, but the ACAS report found that complaints are not necessarily kept secret. This can lead to further abuse and victimisation. A complainant can be disciplined or warned not to proceed with the grievance.
Workers in the public sector are more likely to access the grievance procedure, but they do not feel that hearings are any fairer than in the private sector.
Problems are often solved internally in large organisations as they have the resources to facilitate this. Union participation is also important in this. Another factor is that with small organisation workers will not be prepared to take as much trouble going through the procedures as they feel there is less likely to be a fair outcome.
Employers usually denied all allegations made. Some employers made counter allegations, that the claimant's performance was poor or that they had committed an act of gross misconduct.
Larger organisations highlight their policies as evidence that they do everything to prevent discrimination. They point to training and equal opportunities policies etc. Some ET3 forms (the employer's response to the Claimant or applicant's ET1 claim) add that the employer takes claims of bullying or harassment very seriously, and take all reasonable steps to prevent this.
Claimants felt that they had not received a fair hearing of their grievances, that complaints were ignored or trivialised. This sometimes led to further abuse or victimisation.
Half of sexual orientation and religion or belief claimants settled before the employment tribunal hearing. A quarter of cases were withdrawn and one in 6-7 went forward to an employment tribunal hearing.
The average settlement was just under £3,000. One in seven sexual orientation claimants gained over £10,000.
The risk of having to pay costs, and the general stress of conducting their case were factors in claimants deciding to accept settlements instead of 'having their day in court'.
The ACAS report cites examples of the discrimination suffered by applicants. This ranged from verbal abuse such as 'gay boy', 'poof 'etc to threats of violence, being spat on and even actual physical violence. Abusive e-mails and offensive remarks written on timesheets were also reported. One claimant was thrown into a bin containing broken glass, another hit on the back and kicked in the groin.
Where bullying or harassment was perpetrated by managers this would sometimes take the form of treating the claimant less favourably than other members of staff such as making them undertake menial tasks, subjecting the claimant to extra or unnecessary scrutiny, excluding him from perks or benefits, denying extra shifts when requested, requiring him to use flexi-credits for time off to see the GP or punishing him more harshly.
Acas found that bullying or harassment was central to claims of sexual orientation discrimination. This manifested itself in three forms:
Bullying usually began soon after the claimant started working for the employer or was triggered by an event such as the claimant's promotion.
Where a worker complained about the bullying or harassment to the management, this invariably made the situation worse. Perpetrators increased the scale, frequency and ferocity of attacks.
Evidence points to managers not taking complaints seriously. One lesbian worker was told by her manager that she didn't know how to have a laugh The bullying or harassment only ended when the employee left work either by being dismissed or through resignation due to depression or anxiety.
In some of the cases, a senior manager would instigate racist comments that would then be followed up by more junior staff. After the London bombings one manager in front of the only muslim employee in the company (who had condemned the extremists' violence) said that muslims should be 'burned'.
Approximately half of the religion and belief claims were by muslims.
A number of incidents seem to have been triggered by the July 2005 bombings.
In the face of complaints, managers close ranks and try to discourage complaints by ignoring them, laughing, or even disciplining the complainant. This can be partly out of fear on the part of managers, of not knowing how to deal with such a situation.
One worker who complained to the owner of his company about being victimised had his concerns dismissed. The employee said he was getting his coat on. He was then told "Fine, your f…ing P45 is in the post".
WorkRep Comment On The ACAS Report:
This ACAS report confirms what employment advisers have long known:
We are as a society very far from stamping out discrimination in the workplace. The perpetrators mostly get away with it for a number of reasons already outlined on the WorkRep website such as the ignorance of the law and legal procedures and tactics that are used stress in bringing a claim, the fear of costs, and the difficulty of proving the claim in the face of the (unsurprising) denials of the employer.
The ACAS report confirms anecdotal evidence about the state of discrimination in the workplace and the extreme difficulties that a worker faces in bringing his case. The very low average award in the employment tribunal is another hindrance to workers contemplating seeking to protect themselves against discrimination. The fact that the employment tribunal is a playground for lawyers and barristers gives many a worker pause when contemplating taking his employer to a tribunal. The fact that Chairmen of tribunals often try to balance out to some (small) extent the injustice done to legally unrepresented workers (under their obligation to comply with the 'overriding objective of doing justice') does not mean that they do in fact succeed in this.
Rather the opposite as the system is just too heavily weighted in favour of the legal professionals at every stage of the process.
Ignorance by unrepresented workers of their rights, and of their ability to effectively seek redress through the nightmarish system of employment tribunals really is bliss for employers.
© Workrep 19 / 06 / 2007