British Telenet Limited Essay

Three problems that British Telenet Limited is dealing with could lead to employee disputes that, if they are not resolved internally or amicably, could be brought before the employee Tribunal. The three problems that have developed at the company are governed by the Equality Act. The Equality Act’s Section 4 lists protected traits that can be used as the foundation for discrimination claims. Age, sex, race, and faith or belief are among the categories that are protected. Whether or not the workers Ade, Suzy, and Farzana can file claims will be disclosed in this report to British Telenet Limited. Following that, each instance will be independently examined. Whether Ade can bring a claim in harassment under the Equality Act 2010?

Issues

Ade as been continually teased by her colleagues Rory and Phil who are her subordinates because of being an older Asian woman who is a team leader. It is important to assess whether the teasing behavior of Phil and Rory amount to harassment under the Equality Act. Moreover, Rory’s secret perceptions that people of color should not hold seni (ACAS 2014)or positions of employment should also be assessed in order to determine the legal repercussions that could arise from such an assertion.

Rules

S. 26(1) of the Equality Act prohibits harassment alongside direct and indirect discrimination on any of the protected characteristics under the Act. Harassment is defined as unwanted action which an individual engages in relation to a relevant protected characteristic; and which action is aimed at or has the effect of violating the dignity of the person at whom they are directed or creating a hostile , degrading, humiliating, offensive and intimidating working environment for the target. S. 14(1) takes cognizance of the possibility of combined discrimination due to dual characteristics which are protected forming the basis of discrimination or harassment. Sex is defined as a protected characteristic which relates to the reference to a man or woman. Race refers to distinctions based on color, nationality and ethnic or national origins (S. 9).

In Roberts v. Cash Zone, the Employment Tribunal upheld the claim by Ms Roberts that she had undergone age harassment as opposed to discrimination based on the words that were used by her employer in relation to her work. Her manager had consistently referred to her as ‘kid’ and a ‘stroppy kid’ before she was ultimately dismissed. The derogatory manner in which the words were used was cited as part of the reason for upholding the claim.

Application

In Ade’s case, Rory and Phil keep teasing her by stating that ‘old women should be looking after their grandchildren’. The statement can be construed as harassment because it is derogatory and aimed at humiliating and humiliating Ade by positing that she is too old for the job and should therefore retire. The teasing also has the potential of creating an offensive environment for Ade whereby she would consistently second guess herself as not belonging at British Telenet Limited because of her age. Rory and Phil also tease her by stating that she should alternatively be in the kitchen cooking for her husband. The remark can be construed to be sex based harassment because it insinuates that a woman has no place in the workplace but at home thereby having the ability of being offensive. Rory who thinks that persons who are not white should not hold senior leadership positions in the organization poses another potential for harassment. The Race Relations Act contains provisions that prohibit racial discrimination in the workplace. In Essop and Others v. Home Office, the Supreme Court posited that the burden of proof in cases of discrimination or harassment based on race was on the claimant who also had to prove the disadvantage which was caused by the acts. In the case of Ade, it may be difficult for her to prove that there is any disadvantage posed by the thoughts of Rory on colored people not being suitable for top leadership positions. The reason is that as currently is; Rory has not acted upon his thoughts. As long as he has not said or acted in a detrimental manner; it may be difficult for Ade, who bears the burden of proof on a balance of probabilities to show that she has been affected based on her race. In Fairbank v. Royal Mail Group Ltd, it was held that a manager was able to successfully bring a claim, despite employees subordinate to her having been the source of her sex discrimination. Following suit, Ade can also bring a successful claim against British Telenet Limited.

It is important to note that so far; Ade has not raised any objections to the teasing she experiences from Rory and Phil despite having the legal onus to bring a claim of harassment under the Equality Act. The protected characteristics which are violated by Rory and Phil are age and sex which bring about the harassment prohibited under law. It is possible that Ade’s views the remarks of Rory and Phil as mere workplace banter and nothing more. However, it is important that since the company knows that there is a potential for the bringing of a claim; they act to prevent it. Moreover, Ade can bring a claim of constructive dismissal in case she resigns. The company would be liable for the actions of Rory and Phil based on the doctrine of vicarious liability. In Mohamud v WM Morrison Supermarkets, the Supreme Court held that an employer was liable for the actions of one of his employees which included racist remarks targeted at a customer. The court rejected a test which was fronted in order to make employers liable only for actions which were performed in a position wherein the employee acted on behalf of the employer. The court held that actions which were performed in the line of duty had the capability of making an employer liable for the actions of his employees.

Conclusion

ACAS advocates for internal attempts to resolve a dispute before a person makes a claim at the Employment Tribunal. Persons such as Ade who are affected by discrimination are urged to first talk to their employers in order to attempt to resolve the dispute. The employer should not use the issue to the detriment of the claimant in future decisions such as promotions or pay rises. Internal resolution mechanism provides a defence for the employer before the Employment Tribunal because they prove that the employer attempted to stop the persistent harassment. Actions which can be taken by an employer in after Ade proves the harassment she has been facing include the issuance of a first warning, a last warning and termination of contract. Failure to resolve a dispute within the company would lead to an aggrieved employee like Ade having the option of presenting her case before ACAS which would make a binding award. Such an award can be challenged before the Employment Tribunal.

Whether Suzy can bring a claim in relation to her reporting of the beheading video which led to the termination of her employment contract?

Issues

Suzy’s employment contract was terminated on her first day on the job. The termination came about because she reported to her line manager that some staff members watched ‘ISIS beheading videos’ all morning. It is important to assess whether Suzy has a legal claim for victimization under the Equality Act.

Rules

S. 27(1) of the Equality Act expounds on the definition of victimization which encompasses the subjection of a person to a detriment because of reasons under s. 27(2). S. 27(2d) provides one reason as being the provision of information regarding a violation of the Act. S. 27(3) posits that such a person who faces a detriment only finds legal recourse under the Act if they act in good faith when providing the information. As such, the person providing such information on the violation of protected characteristics must have believed at the time that they were making a correct allegation. In case their assertions turn out to be wrong, they would still be protected if they acted in good faith. In the case of Chesterton Global Ltd & Anor v Nurmohamed, the Employment Appeals Tribunal upheld a decision by the Employment Tribunal in favor of the claimant who had revealed a protected disclosure and had subsequently had his employment contract terminated.

Application

Suzy was genuinely concerned when she noticed that some of her work colleagues in the web services department spent an entire morning watching videos which relate to religious intolerance. The actions of her fellow workmates may have struck her as a cause of concern as it affected the protected characteristic of religion and belief. Not only would Christians in the workplace been affected by the videos in which Christians are often persecuted; it is also plausible that Muslim employees in the same environment may have felt intimidated because of such actions. Muslims would have been affected in case the watching of such videos raised anti-Muslim sentiments amongst the employees. If the employees favorably viewed the videos; they would also intimidate or offend Christian workmates. An analysis of Eweida v. British Airways Plc, exemplifies Suzy’s position of having been victimized on the basis of s. 27. In the case, the court dismissed an appeal wherein the appellant claimed that they had been discriminated by being forbidden from wearing a cross to work. The inclusion of a cross was deemed as a violation of the company’s dress code by the employer. The regulation of religious behavior or actions which have the ability of affecting other person’s religious beliefs was acknowledged by the court as necessary. The court also posited that in some instances, indirect discrimination could be justified because of the necessity and proportionality of achieving another legitimate aim. The line manager of Suzy had the power to talk to her colleagues and ask them to stop watching the beheading videos. They however opted to terminate Suzy’s contract on the basis that she is ‘trouble’. Such a position provides an example of the detrimental effect which Suzy felt for attempting to provide information about the violation of a protected characteristic.

Conclusion

Acas; which is tasked with the improvement of workplace disputes and effectiveness, provides important information which can assist the management of companies to uphold fair labor practices. The organization provides training on employment relations and disputes. Moreover, it also provides arbitration for employers and employees before an employee can opt to seek legal redress in the Employment Tribunal. In their publication on understanding the basics of equality and discrimination, victimization is provided as one of the bases upon which a claim under the Equality Act can be made. The article asserts that it is not pertinent that the person who brings a claim for victimization have undergone the violation of one of the protected characteristics. It is sufficient if the person is detrimentally affected because of the provision of information or defence of someone else who would have been affected by being offended or intimidated. In the case of Suzy therefore, she is capable of seeking legal redress because she aimed to provide information concerning the protected characteristic of religion or belief. Suzy has the ability to bring a claim against British Telenet Limited and in such a case, the only defence that the company would have would be to dispute her reasons for reporting the watching of ‘ISIS beheading videos’ as being concerns based on the protected characteristic or religion or belief.

Whether Farzana can bring a sex discrimination claim under the Equality Act?

Issues

Telenet has a graduate recruitment scheme wherein the recruited individuals are eligible for promotion between the ages of 25 and 30. The issue under consideration in this case is whether she can bring a claim on sex discrimination based on the timing of promotion.

Rule

S. 19 of the Equality Act defines indirect discrimination as occurring when a person applies a provision to other persons who differ in characteristics; albeit the provision, although unintended, ends up adversely affecting persons who share one characteristic while the other persons are not affected. S. 19(3) acknowledges sex as one of the protected characteristics which if adversely affected in the manner described above; would result in discrimination which is prohibited under the Act.

Application

The case of Farzana presents an indirect discrimination on the basis of sex. Although all graduate trainees are promoted between the age of 25 and 30; Farzana can argue that the provision is discriminatory to women as opposed to the male recruits at British Telenet Limited. At age 25-30; some women opt to get married and start families. Although men also engage in the same activity, women would be more likely to be adversely affected because they would be the ones who would focus more on child rearing in the family setup. The assessment of their capabilities would be affected during the period. Despite women’s role in childbirth being recognized and protected under the

In the case of Clarke v Eley (IMI) Kynoch Ltd; and Eley (IMI) Kynoch Ltd v Powell, the Employment Appeals Tribunal held as unlawful a blanket selection aimed to determine which part time workers were redundant. The determination was made on the basis of the different social roles which males and females play in society thereby affecting their work habits. In the case of Farzana, there is also a blanket policy put in place by British Telenet Limited which has the ability of negatively affecting most female graduates as opposed to their male counterparts. The blanket decision to promote women from age 25 to 30 fails to take into account other social roles which female employees have to play in the society. In Achonwa v Independence Homes Ltd, the court stated that it is often difficult and uncommon for a court to pinpoint direct discrimination based on direct evidence; however, the court acknowledged that in case of unfair actions by the employer, an inference can be made that there is discrimination. The position rings especially true when the case of Farzana is analyzed. A first glance would not reveal the discriminatory nature of the policy to promote graduate recruits at age 25 to 30. However, it is only when the social context is called into question that the indirect discrimination becomes evident.

The ‘like with like’ interpretation provision used by courts to assess the existence of bias or lack thereof was recognized in the case of Bain v Bowles and Others. ‘Like and like’ means that only similar things or persons should be treated alike while different things or persons should be treated differently. The provision sets the stage for the use of positive discrimination which is a defence for discrimination based on the protected characteristics under the Equality Act s. 158. The section allows for affirmative action which can be implemented in order to ensure that women, such as those in the graduate recruitment program, who suffer a disadvantage on the basis of the promotion policy to overcome or minimize the disadvantage. ACAS has also provided advice to employers on affirmative action which is necessary, for example in the case of women in the workplace. The article acknowledged that many women are affected by pregnancy discrimination in the workplace. It is therefore essential for British Telenet Limited to come up with positive actions which are aimed at helping the female graduates to overcome the discrimination posed by the policy relating to promotion of graduate trainees.

Conclusion

The ACAS publication on the Equality Act 2010 provides guidance on the manner in which organizations can mitigate the effects of discrimination within the workplace. British Telenet Limited should work to ensure that Farzana and other female graduate trainees are informed and provided with an alternative policy for promotion. It would, for example, be better if the company based its promotions on performance as opposed to age because by doing that, they would suspect women to indirect sex discrimination.

Conclusion

In all three cases, British Telenet Limited faces the possibility of claims being brought against them at the Employment Tribunal. The company can however put in place several measures which would improve its chances of not having to pay awards to the Farzana, Ade and Suzy. In Ade’s case, the internal dispute resolution team step in and prevent any further discrimination on the basis of age and sex. Suzy who has already been terminated from employment presents a more complex case which can result in a claim before the Employment Tribunal because she provided information on a protected characteristic which resulted in her being treated in a detrimental manner. However, the company can argue that the subject which she spoke up on is not one under protected disclosures. Moreover, since it was her first day on the job and she had not yet been in the organization for at least two years. Farzana’s case requires the company to institute positive policies for the females in the organization. The company should ensure that it has a functional internal dispute resolution system whereby employees like Suzy can report any grievances they may have based on employment law and seek redress. In the absence of such internal mechanisms, the Advisory, Conciliation and Arbitration Service comes in handy as it resolves disputes and makes binding awards after arbitration. In case the two aforementioned methods failed, the aggrieved employee can institute a claim at the Employment Tribunal and seek an award or damages.

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