Discrimination claims tend to fall into 2 broad categories – the first are where something has been said or done and the dispute comes down to oral evidence. The second category is what might be described as a paperwork or data type claim.
Both employers and employees should be aware of the significance of data and how it can hugely impact on whether a discrimination claim proceeds and the prospects of success.
The employer’s perspective
First and foremost keep in mind the explosion of data that has occurred with the digital revolution – data is potentially evidence, whether you are aware of it and consider it like that or not.
Second, familiarise yourself with discrimination law – it can impact you as employer in ways you may not be aware, such as the fact you can discriminate at the recruitment stage even if you don’t offer an applicant a job. Be aware also that it doesn’t matter if you are overtly or even aware of possibly being ageist, sexist or racist for the purposes of discrimination. It may be the case without you even knowing it, because the duty is effectively on you as employer to make sure that you are not discriminating.
Let’s take an example – you are the owner of a business with 100 staff. As such, the business has got to a size where you need managers to help you and you have 1 or more of this e managers that recruit for you. These managers are good and loyal staff and you have no reason to suspect them of being racist or sexist. Over the course of 2 years, your business takes on a further 15 new staff, with those staff recruited by 2 or more managers who each recruit some of the staff and have not consulted with each other so you now have 115 staff. Of those 115 staff, only 5 turn out to be non-white and all of your staff are in the age bracket of 18-45. Simply for arguments sake, let’s say that an unsuccessful applicant for 1 of the jobs, an Asian gentleman who is 50, has a suspicion that he didn’t get the job because of his ethnicity or his age. Whilst your business is not under a legal duty to positively discriminate in favour of minorities or those approaching late middle age and onwards, as a matter of data, the facts do not appear helpful and may give a potential claimant a good starting point for establishing a claim against your business. In the above scenario, you are adamant that your managers are not racist or ageist but by the same token, you have not been aware of the data within your business, so are not in position to understand that something may be happening which may be passive and non-deliberate.
Hence the importance and value of data. The same principle of course applies to how much you pay your staff. Whilst you may make clear in contracts and policies that staff are forbidden to discuss amongst themselves what they earn, in practice this does happen, and if you aren’t aware of the data, it may transpire that almost without realising it, a significant proportion of women are earning less than men for comparable jobs. If that’s the case, you are at risk of a discrimination claim where the data is compelling evidence against you.
By changing your mindset to be more aware of data, you will recognise the importance of having the right policies and processes when recruiting and dealing with staff. Checklists and interview records when recruiting are useful as a starting point. Analysing the data within your organisation periodically, for any obvious discrepancies in the make up of your staff and then way they are treated, as regards pay or otherwise, is a good habit, and the data you have, and the fact you take discrimination seriously, as show by your data exercises, is likely to stand you in good stead should there be allegations of discrimination in the future.
The employee’s perspective
As an employee or job applicant you may strongly suspect that you are being discriminated against but you need to be aware that mere suspicion is not a strong enough ground to potentially destroy a relationship with your employer by launching straight into an employment tribunal claim or even resigning. You need to use the procedures available to you and to be aware of the inherent difficulties of succeeding with many type of discrimination claim, especially the requirement for a comparator (an issue which is not the subject of this post).
It is a big mistake to and submit a tribunal claim without hard facts, hoping that facts to support your claim will come out as the case proceeds. It may be that your case won’t be allowed to proceed by the Tribunal if it doesn’t have supporting facts. Tribunals, like civil courts generally, tend to take an unsympathetic view of so-called “fishing expeditions”.
So, as an employee, you need to get the right data at an early stage and there are 2 opportunities/methods to do this :-
- to ask questions and seek data as part of an informal request or grievance process
- to use a formal Equality Act questionnaire to elicit information and data from the employer/recruiter
If the employer/recruiter does not co-operate in the above process or only partially co-operates, this may be compelling evidence which arouses suspicion of a tribunal, so it is surprising, particularly in the case of the Equality Act Questionnaire, that is not more widely used.
A common mistake by employees also is to not carefully think through the right questions, which will put pressure on the employer to produce the data which may help the employee. This is one area where it is likely to be beneficial to get an experienced employment lawyer to help draft the grievance or questionnaire.
Get in touch with me if you would like further advice or information about a discrimination issue, whether as employer or employee.
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