Advice for Samia on Potential Discrimination Claims

This advice will consider the potential claims Samia may have against her employer under the Equality Act 2010 (‘the Act’). The issues Samia has experienced appear to fall into three main categories of unlawful discrimination: indirect sex discrimination, harassment related to sex, and direct race discrimination. Each of these will be addressed in turn, followed by advice on the practical steps Samia should take.

Indirect Sex Discrimination

Samia may have a claim for indirect sex discrimination in relation to the scheduling of the visiting speaker series. Indirect discrimination is defined in section 19 of the Act. A claim will arise where an employer applies a ‘provision, criterion or practice’ (PCP) which, although applied equally to all employees, puts those who share a particular protected characteristic at a disadvantage when compared with those who do not.

The legal test requires the claimant to show four elements:

1. The employer has applied a PCP.
2. The PCP puts, or would put, persons with whom the claimant shares a protected characteristic at a particular disadvantage.
3. The PCP puts, or would put, the claimant at that disadvantage.
4. The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.

In Samia’s case, the protected characteristic is sex, under section 4 of the Act. The PCP is the practice of scheduling training and speaker events in the early evening. This PCP is applied to all employees, regardless of gender.

The next step is to establish group disadvantage. Samia must show that this PCP puts women at a particular disadvantage compared to men. It is a well-established principle, of which employment tribunals often take ‘judicial notice’, that women as a group bear a greater proportion of childcare responsibilities than men and are therefore less able to comply with working arrangements that are not flexible (Home Office v Holmes [1984] ICR 678). This means that a requirement to work late or attend events outside of core hours can disadvantage women. The fact that Samia knows "others had the same problem" supports this, although the key is the general disadvantage to the group, not just individuals at her specific workplace.

Samia is clearly at a personal disadvantage, as the timing of the event means she "could not attend" because she needs to collect her daughter from childcare. This satisfies the third element of the test.

The burden of proof then shifts to the employer to show that the PCP is a "proportionate means of achieving a legitimate aim". This is the justification defence. The legitimate aim might be providing valuable training to staff. However, the means of achieving that aim (scheduling it in the early evening) must be proportionate. This involves a balancing act between the discriminatory impact of the PCP and the employer's need to achieve its aim. The employer must show that there were no less discriminatory means of achieving the objective. The manager’s response that it was "unavoidable because that was the earliest available slot" is unlikely to be a sufficient justification on its own. A tribunal would expect the employer to provide evidence that they considered other options, such as holding the training during the working day, online, or at different times to accommodate those with caring responsibilities. Without such evidence, it is likely that the PCP would be found to be disproportionate, and Samia’s claim for indirect sex discrimination would have a strong chance of success.

Harassment

Samia has also been subjected to unwelcome behaviour from her colleague, Rashid. This may amount to harassment under section 26 of the Act. Harassment is defined as unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

The relevant protected characteristic here is sex. The unwanted conduct consists of Rashid repeatedly asking Samia out and, following her final refusal, putting up a photoshopped picture of her in the staff room with an offensive caption. This conduct is clearly unwanted, as she has repeatedly declined his advances.

The conduct must be "related to" sex. The repeated requests for a date and the subsequent reaction when she refused are connected to her being a woman. The nature of the image—comparing her to an "ice cube"—is a gendered insult used to criticise a woman who does not respond positively to a man's advances.

The final element is whether the conduct had the proscribed purpose or effect. It is not necessary to prove that Rashid intended (had the purpose) to harass Samia. It is sufficient that his conduct had the effect of creating a degrading and embarrassing environment for her. The Act states that in deciding whether the conduct had this effect, a tribunal must take into account the victim's perception, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect (s.26(4)). Samia "felt degraded and embarrassed" and has not wanted to go to work. Given the public nature of the humiliation (in the staff room), it is highly reasonable that the conduct would have this effect.

Under section 109 of the Act, an employer is vicariously liable for acts of harassment carried out by its employees in the course of their employment. Rashid’s actions took place at work, so the practice will be liable. The employer has a defence if it can show it took "all reasonable steps" to prevent the employee from carrying out the discriminatory act. The facts suggest a "hostile atmosphere" has been "escalating", which indicates that management has likely not taken such steps. Therefore, Samia has a strong claim for harassment against both Rashid personally and her employer.

Direct Race Discrimination

The comment made by the Senior Manager when Samia enquired about a managerial position is a clear instance of direct discrimination. Direct discrimination is defined in section 13 of the Act as occurring where, because of a protected characteristic, a person is treated less favourably than another person would be.

The protected characteristic here is race, which under section 9 of the Act includes colour, nationality, and ethnic or national origins. The manager's statement that it is "better to leave the management of the practice to those who were British 'born and bred'" directly refers to national origins.

The less favourable treatment is the denial of an opportunity for promotion or even consideration for the role. Samia is being treated less favourably than a hypothetical comparator who is 'British born and bred'.

The treatment is explicitly "because of" race. The manager’s own words provide the reason for the treatment, establishing a clear causal link between Samia's perceived national origin and the denial of the opportunity. There is no need to show a discriminatory motive; the question is simply about the reason for the act (Nagarajan v London Regional Transport [1999] UKHL 36). Here, the reason given is explicitly discriminatory.

Unlike indirect discrimination, direct discrimination cannot be justified (except in the very limited context of age). Therefore, this is a very strong claim. The employer would be vicariously liable for the manager’s discriminatory act.

Summary of Advice and Next Steps

Samia has strong potential claims against her employer for:

1. Indirect sex discrimination due to the scheduling of out-of-hours training events which disadvantage her because of her childcare responsibilities.
2. Harassment related to sex because of the unwanted conduct from her colleague Rashid.
3. Direct race discrimination due to the manager’s statement that management roles are reserved for people who are 'British born and bred'.

The "hostile atmosphere" and exclusion from social and training events may also form part of the evidence to support her claims, demonstrating a wider discriminatory culture at the practice.

I would advise Samia to take the following steps:

1. Keep a detailed record: She should write down all the incidents, including dates, times, what was said or done, and who was present. This will be crucial evidence.
2. Raise a formal grievance: The problem states she wishes to make a formal complaint. She should do this by following her employer’s internal grievance procedure. This puts the employer on formal notice and gives them an opportunity to resolve the issues.
3. Contact ACAS: Before a claim can be made to an Employment Tribunal, it is mandatory to contact the Advisory, Conciliation and Arbitration Service (ACAS) to begin the Early Conciliation process. This is a free service that attempts to help the parties reach a settlement.
4. Be aware of time limits: A claim must normally be brought in the Employment Tribunal within three months (less one day) from the date of the act of discrimination. For the manager's comment and Rashid’s most recent act, this time limit has already started to run. For an ongoing situation, such as the policy on training events, this may be a 'continuing act', and the time limit runs from the date of the last act. The ACAS Early Conciliation process 'stops the clock' on the time limit while conciliation is ongoing.

Given the strength of her potential claims, Samia should seek legal advice from a solicitor specialising in employment law or a body such as Citizens Advice to guide her through this process.

References

Cases

• Home Office v Holmes [1984] ICR 678
• London Underground Ltd v Edwards (No 2) [1999] ICR 494
• Nagarajan v London Regional Transport [1999] UKHL 36

Legislation

• Equality Act 2010