In the wake of the recent and horrific terror attacks in the UK and the reported increase in hate crimes, we reflect upon what protections our UK employment law, in particular discrimination laws, offer Muslim employees at work and what employers should be doing to strike a fair balance between employees.
Muslim employees are protected from discrimination on the grounds of race, religion or belief under the Equality Act 2010. Muslim employees with over two years’ continuous service also have the right not to be unfairly dismissed under the Employment Rights Act 1996 and are also afforded whistleblower protection.
Discrimination by employers can be direct or indirect. However in our experience intentional direct racial or religious discrimination is rare amongst our clients’ businesses, unlike racial or religious harassment (a form of direct discrimination) which can be a more subtle trap for employers to fall into. This is because harassment can also take place by employees against each other without the knowledge of the employer and yet the employer can still be liable for the consequences.
What is religious or racial harassment?
Racial or religious harassment is a form of direct discrimination whereby an individual is treated less favourably because of their own race or religion, the race or religion of someone they are associated with or how their race or religion is perceived. It involves a person engaging in unwanted conduct which is related to race or religion and which has the purpose and effect of:
- violating the worker’s dignity; or
- creating an intimidating, hostile degrading, humiliating or offensive environment for that worker.
Harassment can include:
- abusive language, including racist or religious jokes and can include “banter”;
- the display of racially offensive written material;
- physical attacks, threatened assaults; and
- exclusion from workplace events and social occasions.
For the employee the result of workplace discrimination or harassment is the same; it can lead to stress, health problems, psychological problems and physical injury. It can lead to employees leaving their jobs rather than facing continuing harassment.
For the employer discrimination can be a minefield leading to increased sickness absence and an increased burden on HR departments to deal with and manage sickness absence and the return to work procedure, reduced productivity, high staff turnover and costly Tribunal claims which in turn may harm the public image of a business.
What can employers do?
Provided that they know about the issue, employers have two ways of handling a complaint of alleged discrimination; informally or formally. Either way it should not be ignored.
Where an employee makes a complaint, the employer may choose to deal with it informally by having a quiet word with all of those involved to reach a resolution for all parties. This may prevent it escalating and possibly ending as an Employment Tribunal claim.
However, where the conduct is deemed to be sufficiently serious and/or evokes strong feelings for the recipient or where the employer thinks there are wider workplace issues or factors at stake which mean the matter must be escalated, the complaint should go through a formal approach using a formal grievance procedure, and possibly a disciplinary procedure, too.
In certain situations, an employer may consider temporary measures, such as the temporary transfer or suspension of an employee whilst an investigation into the alleged harassment is conducted or splitting up employees who are in dispute whilst investigations take place.
In any dispute between employees, an employer should always try to be mindful of both sides of the story which may be especially difficult in current climes. Consider whether confidential counselling is appropriate for either or both employees and make available helpline numbers and employee assistance details if they are offered by your organisation.
Consequences of discrimination for employers
Under the Equality Act an employer can be held liable for the actions of an employee when they occur “in the course of their employment” and the employer knows or ought to know that harassment is taking place and fails to take reasonable steps to prevent it.
Compensation for dismissal (including constructive dismissal) arising from discrimination is uncapped and may be awarded in addition to an award for injury to feelings. The injury to feelings award bands have been revised with inflation following the case law developments and a higher award could even be £41,766 to date (if the Simmons v Castle uplift applies at the courts discretion if they determine the award of damages does not reflect the injury). On top of this, the potential costs of adverse publicity from a finding of race or religious discrimination against an employer are perhaps unquantifiable.
Where harassment also results in an injury to an employee’s health or places them under stress, the employer might be held in breach of their obligations under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999. This could potentially give rise to a personal injury claim as well as an Employment Tribunal claim.
How should employers respond?
Policies: Implement and maintain unambiguous anti-discrimination, bullying and harassment policies and ensure that these are clearly communicated to all employees. Consider whether policies are up to date legally and whether they have kept pace with political and social changes.
Training: Provide regular training for employees and managers to ensure that they have sufficient understanding of what is acceptable and unacceptable conduct and what employees can do if they feel threatened or unhappy.
Grievances: Take employee’s complaints seriously and conduct thorough investigations in line with company procedures. Any sanction imposed should be reasonable and proportionate to the offending conduct.
Look and Listen: Ensure that managers are well trained in these issues and are visible in all parts of the workplace and are able to deal with issues as they arise sensitively and with compassion.