Post Employment Discrimination Post Employment Discrimination Have you ever refused to provide a reference or ignored complaints from an ex-employee?
Well, as a result of recent case law, if you have committed an act of discrimination, in so doing, you could now be held to account even though the individual is no longer an employee.
Provided the act of discrimination has arisen from the employment relationship itself, for example the refusal to provide a disabled person with a reference or the failure to properly investigate an allegation of sexual harassment during an appeal against dismissal, an individual can make a tribunal claim.
Your responsibilities to act as a reasonable employer continue post employment!
As a result of European legislation, the Race Relations Act 1976 (Amendment) Regulations 2003, mean that the burden of proof is now firmly on the employer to show either they did not commit an act of discrimination or that their acts were justified.
Remember your business can be held liable for any racially offensive language or behaviour by your employees and this may result in unlimited compensation being granted.
To protect you and your business, it is wise to communicate to all staff that you will not tolerate any form of harassment and bullying through clear Harassment, Equal Opportunities and Grievance procedures.
Consider the scenario…..
An editor of a local newspaper, Samantha Grey took on a young male personal assistant, John. She made advances to him but he politely told her he had a partner, Greg. Since then Samantha has regularly made personal and offensive remarks to him regarding his preference in partner, as a result of which he has been taking more and more time off sick.
What would you do in the circumstances?
From December 2003, it is likely that John will be able to make a claim of harassment under the sexual orientation discrimination laws on the basis of the distress and offence caused by Samanthas’ remarks. What is more, it is not just Samantha, but the local newspaper that could be held liable and compensation could be without limit! Make sure your policies reflect the new legislation.
Another scenario….
There are two applicants for a customer facing position. Both previously worked in back office positions. One is a Rastafarian and has dreadlocks because of his religious beliefs. He is considered unsuitable for the role and the other candidate is given the position.
How would you deal with the situation?
From December 2003, it will be against the law to discriminate on the grounds of religion. If the employer has not offered the Rastafarian the position purely because of his appearance, this is arguably indirect discrimination. To justify the decision, the employer must show a good business case for customers being put off by his appearance, which is unlikely to be easy in these days where it is generally regarded as an asset to a business to have a diverse workforce.
And finally....
Tania applied for a stylist position at a well known hair salon, with a very strong CV:
Perfect for the job, but at the very end of her CV, her date of birth was 19.9.52 and she didn’t get the job.
Would you have selected her?
By December 2006, it will be against the law to discriminate on the basis of a person’s actual or perceived age. So if the above decision was based on Tania’s age an act of discrimination will have occurred and again her claim could lead to uncapped compensation.
There is already a non-statutory code of practice discouraging age discrimination and employers now need to be looking closely at their recruitment procedures, not least in their choice of adjectives such as ‘dynamic’ and ‘energetic’ when devising job descriptions and advertisements. Only if the words are relevant to performance of the role should they be used.