Workplace discrimination - can you spot it?

A surgery in Pennsylvania learned the hard way that discrimination within the workplace can be extremely damaging to any business’ reputation. After going viral last week, a letter from Visnich Oral Surgery laying off a long-time employee with cancer has had far reaching consequences to the surgery’s standing within the community and beyond.

Obviously this is an extreme case, but in our litigious society it is crucial that you and your staff know where the line from playful joke to potential discrimination can be crossed. Sometimes a small error in judgement can lead to a lengthy and costly case or an unhappy colleague who doesn’t speak up because they don’t know what their rights are. Both of these can be avoided by making sure all the staff in your practice are up to date with current rules and guidelines.

Types of Discrimination

Discrimination comes in many shapes and sizes, but there are seven different veins (although some overlap) including direct, associative, perceptive and indirect discrimination, as well as harassment, victimisation and bullying.

Direct Discrimination

Treating anyone in a less favourable manner than others because of a protected characteristic. For example, if you decided not to promote an employee due to their sex or to not hire someone due to their race.

Protected characteristics include:

  • Age
  • Disability
  • Trans-gender status
  • Marriage and civil partnership status
  • Pregnancy and maternity status
  • Race
  • Belief
  • Sex
  • Sexual orientation

You can see an overview of all nine characteristics on the First Practice Management (FPM) Website.

In certain circumstances, it can be vital to understand how to maintain equality, especially when it comes to the hiring process. What if a role required an employee to have good English skills and someone with a poor command of English (due to their ethnic origins) applied for this position?

If language skills are a legitimate job requirement (e.g in a customer facing role) it is acceptable not to select someone on the grounds that their grasp of the language is poor. Although language is not a protected characteristic, if you cannot prove it is a legitimate business need then the candidate could argue that they weren’t chosen for the role on the grounds of their ethnicity. Then you could be at risk of having directly discriminated someone.

However, if said candidate and another potential employee both have the same qualifications, you can use it as a basis for your final decision if you genuinely think it could make them less able to do the job than the other candidate.

Associative Discrimination

Similar to the above, you can’t treat anyone differently because they are associated with someone with a protected characteristic. For example, treating someone unfairly because they have a disabled parent or a gay brother.

In January 2013 former Telesales Executive Rachel Price took her former employer to an Employment Tribunal (Price v Action Tec Services Ltd t/a Associated Telecom Solutions 2013). Her husband needed chemotherapy for Leukaemia and she was subsequently signed off work for a week due to high blood pressure. On her return, her employer said “if I had known about your husband’s illness I wouldn’t, no might not, have taken you on.’ The tribunal ruled that this was discriminatory on the basis of her husband’s disability.

Perceptive Discrimination

Someone who is thought to possess a protected characteristic should not be on the receiving end of unfair behaviour because of this. Others might suspect that an employee/potential employee is gay or practices a different religion, and discriminate them on these grounds. This again could land an employer in hot water, even if it eventually transpires that they do not even possess this characteristic.

Indirect Discrimination

‘Male employees must be clean shaven,’ ‘No headwear in the workplace.’ Both of these are indirectly discriminatory for many reasons. The first singles out men on the basis of gender and could discriminate against both men who don’t shave for religious reasons and those who might have a skin condition aggravated by shaving.

The second example also discriminates against some religious workers. In Islam many women wear hijabs or khimars as part of their religious practice. Therefore, the sign discriminates against Muslim women and any other staff that cover their heads for reasons associated with their faith.

If an employee can not comply with a rule that has been set out by a practice, this is indirect discrimination.

Let’s say you posted a role that required a number of years experience or a long commitment; could you be discriminating against potential candidates on the basis of age? A 24 year old would automatically be exempt for applying for a role that requires a number of years experience, while someone nearing pension age might not apply for a job where they might be expected to make a five year commitment. If you can prove that there is a reason for these requirements this is not discrimination - if not, you could have a problem on your hands.

Bullying, Harassment and Victimisation

Creating a hostile, intimidating or degrading environment because an employee has a protected characteristic, they aired a grievance or through the misuse of an employer’s power. This also includes post employment victimisation, whereby an employer might refuse to give a reference after an employee makes a complaint under the Equality Act 2010.

Toni and Guy salon owner, Christopher Story was accused of sexual harassment by trainee employee Maryam Mashayekhi. She was eventually awarded £20,500 compensation after months of sexual and racial harassment from the salon owner who made sexual comments about her in front of clients and even offered her cash to sleep with him.

While a lot of these examples are extreme, sometimes the boundary between banter and offensive is less clear. Keep up to date with policies and procedures and consult FPM’s library if you are unsure about any decisions you might be about to make regarding hiring or dismissal. The most important thing is to make sure your staff and any potential employees of your practice are happy with their treatment in the workplace and the environment is a fair and welcoming one.

In addition to the above, FPM members can obtain further information via the FPM website. Alternatively members can also email specific questions about employment issues to advice@firstpracticemanagement.co.uk where your question will be treated in confidence and normally answered (by email) within two working days of submission.


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