Local Time

Friday, November 17, 2006

Advising ethnic minority women about discrimination at work

Women* can be discriminated against at work for one or more reasons. Discrimination could occur because of their sex, race, religion, sexual orientation or for a combination of any of these reasons. Discrimination could happen, for example, because someone is an Asian woman, rather than a white woman or an Asian man.

[ *This information is highlighting women but men can experience the same forms of discrimination and have the same rights under the legislation. ]

It is unlawful to treat someone at work less favourably than another person would be treated in similar circumstances because of their sex, race, religion, belief or sexual orientation. Racial grounds include colour, race, nationality, ethnic or national origins. Discrimination can occur in relation to pay, recruitment, promotion, dismissal, pregnancy, maternity or requests to change working hours. Harassment or bullying at work on grounds of someone's sex or race is also unlawful.

Some treatment at work may be unlawful, even if everyone is treated the same way. An example would be a policy or practice that adversely affects members of one group more than others. This is known as indirect discrimination. It is against the law unless the employer can provide a good reason for this that is not related to sex, race, religion or sexual orientation.

It is also unlawful to treat someone less favourably because they have made an allegation of unlawful discrimination or they have supported someone who has made an allegation. This is called victimisation.

Sometimes discrimination can be quite subtle. When someone comes to you for advice about an employment problem they won't necessarily be saying they think they have been discriminated against. Therefore it is something to bear in mind as they describe what has happened.

Situations that could give rise to discrimination

Recruitment and promotion

Your client is turned down for a job or promotion for which she is qualified and she suspects this is because of her sex, marital status, race, religion or sexual orientation. In some cases there is a genuine occupational requirement that the jobholder should be of a particular sex, race, religion or sexual orientation – but these are exceptions.

Equal pay

Your client may believe that she is doing the same job as a man but is paid less, or doing a job of similar value to one done by a man but is paid less, or that she is being paid less than someone of another race or religion for doing the same job. She could have a claim under the Equal Pay Act, the Sex Discrimination Act or the Race Relations Act. The right to equal pay covers basic pay, bonuses, overtime, holiday and sick pay, performance pay and pension.

Working conditions

Your client may feel that she is not being treated fairly. For example, she might not have been given the opportunity to work overtime or to work flexibly, she's been allocated lower status jobs than others, or received more negative appraisals, not been given access to training or told about opportunities given to other staff, been refused time off for religious holidays or to deal with childcare problems or other family responsibilities. The treatment is unlawful if she has been treated differently because of her sex, race, religion or belief or sexual orientation.

Harassment

Your client may have been subjected to unwelcome behaviour of a sexual, racial, religious or homophobic nature. People often do not realise that this behaviour constitutes harassment, which can lead to low morale, lack of confidence or even feelings of fear and panic. The kind of behaviour that could be unlawful includes:

* Insulting or humiliating remarks
* Indecent or suggestive remarks
* Unwelcome jokes
* Nick names relating to her race
* Making fun of her religion or culture
* Displays of calendars, pin-ups, magazines with sexual or racial overtones
* Inappropriate touching
* Questions about her personal life relating to gender, race or religion
* E-mails containing offensive comments

Any of these factors could create a hostile working environment for employees, particularly for those with strong religious or cultural beliefs.
Rules about what you wear at work

Your client may say that she is not allowed to wear clothing, jewellery or personal markings consistent with her religion. Women from some cultures may be uncomfortable wearing a dress or skirt as part of their work uniform. This could be unlawful religious and/or race discrimination. Your client may complain that women are not allowed to wear trousers. This could be unlawful sex discrimination.

Disciplinary proceedings or dismissal

Your client considers that she has been disciplined more harshly than other colleagues would be, or even dismissed when others would not be. This would be unlawful if it is on the grounds of her sex, race, religion, belief or sexual orientation.

Victimisation

Your client may have been treated unfavourably because she asserted her rights under the sex, race, religion, belief or sexual orientation legislation or gave evidence relating to someone else's complaint. Assuming she acted in good faith this could be victimisation, which is also unlawful.

Action to take

Getting information

You and your client will need to gather information to prove her case. For example, if it's a recruitment matter, she should ask for feedback as to why she did not get the job, in order to assess the reasons given. If she thinks she is being treated differently that other people at work, she should keep a record of her treatment and that of others. Keep a note of who was present to witness any discriminatory treatment. If your client has been disciplined she should request the evidence against her. It is often helpful to gather information on people doing the same job so that her situation can be compared to others. This should include where possible: pay, sex, length of service, race, colour, nationality, ethnic origin and religion.

For unequal pay, she should also gather information on men doing jobs that are equivalent to hers to assess whether there are obvious reasons for the difference. This information should include: job title, job description, qualifications, length of service, hours of work and pay.

For harassment, she should keep a diary of incidents and make a note of any witnesses. She may need support and should be encouraged to talk to a friend or trusted colleague. If it is possible she should ask the harasser to stop and explain that she finds their behaviour objectionable. This can be done in writing.

For victimisation, she should keep a diary of any adverse treatment that she feels is due to her complaining, and note any witnesses to it.
Contacting the trade union

If your client is a member of a trade union she should contact them for support. They should be able to help her collect relevant information, liaise with her employer if required, as well as support and represent her in subsequent action.

Approaching the employer

Your client should let her employer know that she is unhappy about the way she has been treated. She could show them any evidence she has. She should tell them what she understands about her rights and ask for an explanation. It may help to take information from the EOC or other agencies listed on the back page.

In the case of harassment, she should ask if they have a harassment policy, and ask that action be taken under this policy. At the very least the employer should:

* take her complaint seriously;
* explain how they intend to deal with it;
* speak to the person concerned about their behaviour; and
* make sure she does not suffer any reprisals as a result of reporting the harassment.

Using the 'Grievance procedure'

If your client is not satisfied with the response from her employer, she should complain using their formal grievance procedure. All employees should be given a statement of terms of employment that includes details of who and how to take any grievance. There may be a separate procedure for dealing with harassment complaints.

If your client believes she has been unfairly disciplined at work she should use the appeals procedure, as described in her employer's disciplinary policy.

Claimants are usually expected to raise a written grievance before taking their complaint to a tribunal. Guidance about this is available on the DTI website.

Using the 'Questionnaire procedure'

If the employer's response is still not satisfactory and/or you need more information to help you assess whether or not there has been unlawful discrimination, then your client can serve a questionnaire. There is a special questionnaire for each type of suspected discrimination. Check the time limits involved when using questionnaires. Questionnaires can often be obtained from local Jobcentre Plus offices.

The sex discrimination and equal pay questionnaires can also be obtained from the EOC who can give advice on completing the questionnaire.

The race discrimination questionnaire can also be obtained from the CRE who can give advice on completing the questionnaire.

The questionnaires for sexual orientation and religion/belief are available from the DTI website.

Taking a tribunal claim

If your client is not happy with the employer's response, and all the information she has gathered indicates she has been discriminated against, then she can take her case to an employment tribunal. The process for doing this is explained on the Employment Tribunal website.

It is important that her claim is lodged within the time limit. This is usually 3 months less 1 day since the last date on which the discrimination occurred. The time limit should be observed whether or not the grievance procedure has completed. The tribunal may extend their time limit to allow time for this process.

If your client appears to have been discriminated against for more than one reason, for example race and sex, a balance will need to be struck between pursuing all the claims. Don't ignore the other elements, but concentrate on the one with the strongest evidence.

For equal pay complaints, where your client is comparing her pay to that of a man, there is no time limit for doing this while she is with the same employer. If she leaves that employment, the claim must be made within 6 months of her departure.

Claims of victimisation can also be taken to an employment tribunal. There must be clear evidence that the victimisation is due to allegations about discrimination that your client made, or due to her supporting someone else's complaint.

Case Summaries

We have information about a number of cases that have been decided at employment tribunals concerning sex and race discrimination (see the link to case summaries in the related pages section on the right). It can be useful to look at other cases to get an idea how tribunals deal with these issues.

Where to go for more information

We can provide more information about tribunal procedure and the laws relating to sex discrimination or equal pay.

There is also more specialist information on our websites for legal advisers.

Individuals can contact our Helpline by phone or email.

Advisers can contact our adviser line by email or by phone 0161 838 8291, Monday to Thursday 9am – 12 (England and Wales)

For more information on race discrimination, contact the Commission for Racial Equality (CRE) by phone: 020 7939 0000 (England and Wales) 0131 524 2000 (Scotland) or visit their website.

For more information on religious discrimination and discrimination on the grounds of sexual orientation, contact ACAS: 08457 47 47 47 or visit the DTI website.

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