Ade’s Claim On Harassment Under the Equality Act 2010

Due to frequent teasing by her team members

Ade’s workplace has become toxic. These are her underclassmen, and she expects them to honor her and strive for a cohesive team. Her boss anticipates that she will carry out her duties in that of a team leader. Ade should not, in Rory’s opinion, occupy a senior position within the company if she is Asian. When viewed through the lens of the 2010 Equality Act, this is a significant problem. From the description of the scenario, it is not clear whether Rory has openly demonstrated this to Ade. If Ade provides proof that her colleague has demonstrated that they believe in such sentiments, the case qualifies as racial discrimination. Other forms of discrimination evident in the scenario are based on age and gender. Phil and Rory demonstrate that a person of Ade’s age should be staying at home preparing meals for her husband and spending time with her grandchildren. This can also be defined as discrimination based on marriage and civil partnership as the colleagues feel that she should be attending to her husband. Though Rory and Phil’s sentiments may be coming out as mere teases, they are likely to demotivate Ade and make her working environment inhabitable. It is the role of the employer and other employees within the working environment to ensure that all individuals enjoy good conditions. The actions of Ade’s subordinates may be defined as victimization. They are also likely to amount to discrimination because Ade is not perceived and treated well as per her abilities, bur rather personal characteristics that are irrelevant to the nature of the work that she is handling. The key issue in this scenario is the need to determine whether discrimination has occurred on the basis of four different protected characteristics: marriage and civil partnership, race, gender, and age.

Sources and Application of the Law

The validity of Ade’s claim will be determined on the basis of the Equality Act 2010. This law protects individuals from discrimination on the basis of sexual orientation, sex, disability, belief, age, Religion, pregnancy, race, marriage and civil partnership, gender reassignment, religion, and maternity. These aspects have come to be referred to as protected characteristics.

The Equality Act 2010 was put in place by the Parliament of the United Kingdom to meet the directives established through the European Union Equal Treatment Directives. The EU has been keen on pushing the member countries to consolidate their anti-discrimination laws and directives to make it easier for individuals to understand their rights and find justice when these rights are violated. The EU has been coming up with directives which are then adopted and expanded on by the member states. The Equality Act 2010 extensively explores the four major protected characteristics on whose basis Ade was victimized.

Equality Act 2010 Ch. 1 (Sec 5) defines the protected aspect of age as “A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.” Harassment referred to when an employer or a colleague talks about one’s age in a manner that is deemed offensive. These comments can also extend to the people that one is associated with.

Equality Act 2010 Ch. 1 (Sec 8) defines harassment in regard to the protected characteristic of marriage and civil partnership as “a reference to a person who has a particular protected characteristic is a reference to a person who is married or is a civil partner.” This protected characteristic is violated if this reference is found to be offensive to the person being referred to.

Equality Act 2010 Ch. 1 (Sec 9) defines the protected characteristic of race as any reference that relates to an individual’s nationality, color, and national and ethnic origins. Using this protected characteristic to refer to an individual in a manner that may be deemed as offensive can be defined as harassment.

Equality Act 2010 Ch. 1 (Sec 11) explains the relationship between equality and the protected characteristic of sex as any reference to a person as a man or a woman. Harassment in the light of this characteristic occurs when the reference as a man or a woman is used to advance a demeaning sentiment.

Discussion and Consequences of Failure to Follow Law

Rory and Phil refer to Ade’s age to imply that she does not deserve to work within the organization. This is intended to make her feel less deserving of the economic opportunity that she is entitled to. In Central Manchester University Hospitals NHS Foundation Trust v Browne, the court ruled that the employer has the responsibility to protect their workers from all forms of discriminatory treatment that results in an intimidating environment. In the Case, Browne proved that the actions of his colleagues to discriminate and harass him on a racial basis led to a mental breakdown and he was not able to concentrate on his job. The joint action of the employee can also be summarized as collusion and collective bullying as in the case of Dawson V Chief Constable of Northumbria Police. In this case, the Court of Appeal ruled that a perpetrator of any action that is oppressive and unacceptable at the workplace is liable under the Harassment Act 1997 (Harris 2000, p. 17). However, Ade cannot make a strong case based on the issue of discrimination because his thought is secret and has not demonstrated his beliefs that non-whites should not hold senior positions. In March 2011, an employment tribunal awarded Licia Faithful £142,000 as damages for racial bullying and discrimination by colleagues (Bingham 200, n.p.). In Licia Faithful V AXA PPP, the tribunal was convinced that Licia suffered depression and post-traumatic stress disorder after being ridiculed for her accent when working for AXA PPP Healthcare.

Conclusion and Recommendations for Organizational Practice

In Central Manchester University Hospitals NHS Foundation Trust v Browne mentioned above, the claimant proved that the lack of action by the organization’s management had resulted in institutionalized discrimination. There is a need for British Telenet Limited to take action against the two rogue employees. This will affirm the entity’s commitment towards preventing discrimination. Employees who suffer due to the actions of others will in future prefer an out-of-court settlement with Telenet acting as the mediator. This will prevent a situation where the company is dragged into too many court cases.

Farzana’s Sex Discrimination Claim Under the Equality Act 2010

Farzana wants to lay a claim that the company’s determination that she was ineligible for promotion was based on her gender. From the company’s perspective, Farzana would only meet the standards for promotion if she attained an age of 25 years. The information provided in this scenario indicates that Farzana has been denied the privilege of being considered for recruitment. However, the reasons provided by the potential claimant and the defendant are conflicting. It is upon the claimant to prove that the actions of the defendant amount to sex discrimination at the workplace.

Sources and Application of the Law

Chapter 1 section 11 of the Equality Act 2010 defines the protected characteristic of sex as “a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; a reference to persons who share a protected characteristic is a reference to persons of the same sex.” According to the Equality Act 2010, it is unlawful for an employer to discriminate against their employees on the basis of their gender. Direct discrimination refers to a situation where an individual is treated differently from other people because of their sex. In such a case, the plaintiff should prove that individuals of different sex have been given preferential treatment despite all the other factors such as skill and experience being similar. Indirect discrimination takes place when a procedure is applied to all employees but tends to disadvantage others because of their gender. An employer can be exonerated from the indirect discrimination claim by proving that the discrimination occurred in the course of ensuring that the business works. In all discrimination claims, the employee must prove that the discrimination disadvantaged them at the personal level.

The Advisory, Conciliation and Arbitration Service is responsible for creating and coordinating tribunals that solve issues between employers and their employees. For Farzana’s claim to qualify for consideration under the tribunals, her relationship with British Telenet Limited should meet the employee-employee definition. The Equality Act 2010 defines an employee as a person who has had a running contract of employment. The definition of an employee also encompasses workers and agency workers who have a contract to provide certain services and do work. Some of the self-employed individuals who have to personally perform the work and groups such as individuals in partnerships and police officers. For the case to qualify as discrimination by an employer, Farzana should demonstrate that an employee-employee relationship exists between her and British Telenet Limited.

Discussion and Consequences of Failure to Follow Law

The first major factor in Farzana’s scenario is determining whether or not her relationship with British Telenet Limited qualifies as an employer-employee one. According to the Advisory, Conciliation and Arbitration Service (2017), a case is easily admissible and considered by the relevant tribunals under the agency if there exists clear proof that the complainant and the defendant had a running contract at the time which the discrimination took place. However, this requirement that a claim is only valid if the two have had a contract was expunged in Durrant v Chief Constable of Avon & Somerset Constabulary. In Durrant v Chief Constable of Avon & Somerset Constabulary (2017), the court determined that even if a scenario does not qualify as an employment case, injury, and damages caused by discrimination should attract compensation. It is important that the compensation payable in such scenarios be assessed and that an overall figure representing the quantum loss be determined. The court determined that any particular outrageous behavior by an entity that amounts to discrimination is punishable under the law. In British Telecommunications Plc v Reid (2003), the perpetrator is liable even in cases where the grievance process itself is not discriminatory but arises from a discriminatory act. This was also demonstrated in Coleman v Attridge Law (2008).

According to Barnard (2008(b), p. 35), an employer can decline to hire a worker for most malicious and morally reprehensible motives without attracting legal liability. In Allen v Flood (1898), Lord Davey indicated that an individual owning a premise has a choice to decide what kind of relationships they want to be part of and which people should be included. This is the common law position on the issue. However, subsequent laws such as the Sex Disqualification (Removal) Act 1919 were enacted to elevate women by eliminating gender barriers for women who wished to be civil servants, become solicitors or join public education institutions. Discrimination during recruitment and employment has become illegal under the Equality Act 2010. However, an employer can inquire about all the nine protected characteristics, except for disability. British Telenet Limited prompting Farzana for information on her gender does not amount to a violation of any provision within the Equality Act 2010.

Farzana cannot claim sex discrimination under the Equality Act 2010 in this scenario. The company has the right to choose whoever it wants to include in its workforce. The most valid claim of discrimination during hiring is when a company declares that it is not including the disabled in tasks that can be performed by all the people, including those with disabilities. However, there is no direct reference to hiring based on gender in this scenario. Therefore, Farzana cannot prove that she was discriminated against on the basis of gender.

Suzy’s Claim in Relation to Her Reporting the Beheading Videos

Telenet has a responsibility towards its employees of ensuring that it creates a comfortable and enabling work environment. This environment is also important for increasing the productivity of its labor force. Any employer has the responsibility of protecting the dignity of the employee. Factors that are hostile, intimidating, offensive, or humiliating to the employee tends to create a poor working environment.

Suzy demonstrated to her employee that she was comfortable seeing her colleagues in the web services department concentrate on watching ISIS beheading videos for the entire morning. ISIS is a terrorist organization that is widely known for victimizing individuals of certain religions, beliefs, and races. Therefore, the purpose of the beheading videos is to instill fear within a section of the world population as a way of advancing the political agenda.

Suzy forwarded her issue to her line manager because the actions of her colleagues were creating a hostile working environment. It is the responsibility of the manager, as a representative of the employer, to address the concerns of the employees in regard to creating an enabling work environment. The employer should be able to arbitrate between employees and bring the issue raised to a conclusion.

The key issue in this scenario is the failure by Telenet to eliminate factors that led to a hostile working environment. The ISIS beheading video can be described as the victimization of an employee on various characteristics that are protected under the Equality Act 2010. The claim in this scenario will involve proving that Suzy’s colleagues violated her right to a conducive working environment by introducing factors that violated her dignity and resulted in an offensive environment.

Sources and Application of the Law

Chapter 2 section 26 (1) defines harassment as engagement in unwanted conduct that violates another person’s dignity. An act also qualifies as harassment if it results in a hostile, humiliating, intimidating, degrading, and offensive environment. Determining whether an action meets the criteria mentioned above involves giving the affected person an opportunity to explain their perception. The court has a responsibility to determine the intentions of the perpetrator of the action. This will help in deciding whether harassment occurred as collateral damage or as a fulfillment of the person performing the action.

There are instances when an employee can bring a claim of harassment without necessarily having to prove that they were victimized in reference to the protected characteristics. The Protection from Harassment Act 1997 was created by the Parliament of the United Kingdom to protect individuals from all types of harassment that range from stalking to anti-social behavior and racial harassment. This means that as long as an individual can prove that certain conduct makes them uncomfortable, they can lay claim based on the provisions of this act.

Section 4 of The Protection from Harassment Act 1997 protects individuals from actions that create a fear of violence. The section defines putting people in fear of violence as any action that ”causes another to fear, on at least two occasions, that violence will be used against him.” Such actions qualify to be included in the claim if the perpetrator ”knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.” An action under such claims can only be defended if the perpetrator acted to protect himself/herself.

Discussion and Consequences of Failure to Follow Law

An employee is entitled to a conducive working environment that is free from all manners of intimidation and victimization. Suzy’s claim should seek compensation for victimization within the working environment. The actions of her colleagues of watching ISIS beheading videos throughout the morning should be considered as harassment under section 26 of the Equality Act 2010.

ISIS beheading videos are created by terrorists with the aim of advancing their interests. The videos are aimed at creating fear among a section of the population to advance political ideologies. Some of the relevant protected characteristics upon which ISIS bases its ideologies are race and religion. Suzy is likely to have felt intimidated, especially after her employer failed to protect her from the actions of her colleagues.

In Wilsons and Clyde Coal Co Ltd v English (1938), Lord Wright noted that it is the responsibility of the employer to protect the employees from any form of harm while they are within the premises. This role extends to the provision of safe and competent employees that guarantee their colleagues a good working environment. This responsibility was also emphasized by Lord McLaren in Bett v Dalmey Oil Co (1905) when the court stated that it is the responsibility of the employer to find a competent staff that guarantees other employees a good working environment.

In Speed v Thomas Swift Co Ltd (1943), the court indicated that an employer should work towards having in place a safe system of work. Lord Greene noted that there was no exhaustive definition of such a system. However, an employer should consider issues such as setting of the stage, the physical layout of the job in relation to the tasks, and the issue of special instructions. In Suzy’s claim, the employer should be responsible for the manner in which the workstation is arranged because it allows employees to harass others by using whatever they watch on the assigned computers.

British Telenet System should work towards meeting Lord Greene’s definition as explained in Speed v Thomas Swift Co Ltd (1943). It is the responsibility of Telenet as an employer to ensure that it creates a safe work system. It should consider how the workstations are set, the physical layout of the job, provision of notices to employees on the use of computers in the workplace, and issuance of special instructions to ensure that all employees have responsibilities in the workplace and do not resort to harassing colleagues. In addition, the company should put up systems and establish a culture of following up on cases of harassment forwarded by employees. A case such as Suzy’s can be easily addressed by explaining to the perpetrators that there is a need to consider the well-being of colleagues. The management can also take disciplinary action against employees who perpetually harass their colleagues.

References

Allen v Flood [1898] AC 1

Barnard, C., 2008. New Developments in Employment Discrimination Law The UK Report. New Developments in Employment Discrimination Law, The Japan Institute for Labour Policy and Training JILPT Report, (6), pp.31-52.

Barnard, C., 2008. New developments in employment discrimination law. Kluwer Law International.

British Telecommunications Plc v Reid [2003] EWCA Civ 1675; [2004] IRLR 327.

Central Manchester University Hospitals NHS Foundation Trust v Browne UKEAT/0294/11/CEA.

Coleman v Attridge Law (2008) C-303/06

Dawson V Chief Constable of Northumbria Police 209 EWHC 907 QB.

Durrant v Chief Constable of Avon & Somerset Constabulary [2017] EWCA Civ 1808

Einarsen, S., Hoel, H., Zapf, D. and Cooper, C.L., 2011. The concept of bullying and harassment at work: The European tradition. Bullying and harassment in the workplace: Developments in theory, research, and practice, 2, pp.3-40.

Equality Act 2010. c. 15. [Online] Available at: http://www. legislation. gov. uk/ukpga/2010/15/contents [Accessed Nov. 22, 2017].

Harris, J., 2000. An evaluation of the use and effectiveness of the Protection from Harassment Act 1997. Research, Development and Statistics Directorate, Home Office.

HM Courts & Tribunals Service. Employment Tribunal. [Online] Available at: https://www.gov.uk/courts-tribunals/employment-tribunal [Accessed Nov. 22, 2017]

Licia Faithful V AXA PPP

Lord McLaren in Bett v Dalmey Oil Co (1905) 7F (Ct of Sess) 787.

Petch, E., 2002. Anti-stalking laws and the Protection from Harassment Act 1997. The Journal of Forensic Psychiatry, 13(1), pp.19-34.

Sex Disqualification (Removal) Act 1919

Speed v Thomas Swift Co Ltd (1943) 75 Ll.L.Rep. 113.

The Advisory, Conciliation and Arbitration Service. Discrimination: What to do if it happens. [Online] ( Updated October 2015) Available at: http://www.acas.org.uk/media/pdf/o/l/Discrimination-what-to-do-if-it-happens.pdf [Accessed Nov. 22, 2017]

The Protection from Harassment Act 1997 (c 40)

Wilsons and Clyde Coal Co Ltd v English (1938) AC 57.