Discrimination at work. Part three: Protected characteristics and the perception-reality gap July

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1 Discrimination at work Part three: characteristics and the perception-reality gap July 2013

2 2 Discrimination at work characteristics and the perception-reality gap July 2013 About this report Discrimination claims accounted for 15.3% of all the employment claims brought in 2011/12, and a great many more were settled before reaching the tribunal door. From an employee s perspective, discrimination claims are a relatively attractive proposition as there is no service requirement, and compensation is unlimited. Whether meritorious or not, defending these claims eats into limited resources. No amount of best practice will totally eradicate discriminatory conduct or allegations of it, but it is possible to minimise exposure in this area. The starting point is to understand the level of employee knowledge in terms of what is lawful and what it is unlawful, what is acceptable conduct and what is not. This report examines employees knowledge or perception of which characteristics are protected by anti-discrimination laws in the workplace. Our separate report on workplace banter looks at attitudes of employees towards office banter and the extent to which they understand the difference between lawful and unlawful conduct that can lead to harassment claims. Allen & Overy conducted a quantitative survey with UK adult workers via YouGov. All figures, unless otherwise stated, are from YouGov plc. Total sample size was 1163 adults. Fieldwork was undertaken between 12 and 18 September The survey was carried out online. The figures have been weighted and are representative of UK workers. Total percentages may not add up to 100% due to roundings. Allen & Overy LLP 2013

3 3 Employee perception The range of characteristics which are protected from discrimination in the workplace by the Equality Act 2010 are wide-ranging, and have increased significantly over the last decade. Many characteristics, from religion and belief to sexual orientation and age, are protected by anti-discrimination measures. But often, what matters most is not what is actually protected but what employees perceive to be protected. What is a protected characteristic? In Great Britain, the Equality Act 2010 is the main anti-discrimination legislation. It protects nine grounds (known as protected characteristics) from discrimination. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Our research shows that employees have a significant perception-reality gap. This was most apparent in areas where there were high profile cases resulting from employees reporting an apparent injustice. The media outrage at some of the decisions appears to have left, at best, confusing messages for employees. For employers, the perception-reality gap means there is a real risk that employees may inadvertently harass or discriminate against a work colleague without realising that the conduct is both unlawful and prohibited under an employer s Equality or Dignity at Work policies. For the victim, the claim is an attractive one, as there is no service requirement and the compensation is unlimited.

4 4 Discrimination at work characteristics and the perception-reality gap July 2013 Perceptive discrimination Another aspect of employee perception can have a significant impact on the outcome of discrimination litigation. This is the relatively new concept of perceptive discrimination. A claim can be brought on the basis of a person s perceived rather than actual characteristics. The example cited by the Equality and Human Rights Commission is where an employer rejects a job application from a white woman whom he wrongly thinks is black because the candidate has an African-sounding name. This would amount to direct race discrimination based on an employee s mistaken perception. In the context of harassment, an employee might be teased for being gay even though he or she is not. This conduct could form the basis of a harassment claim based on perceived discrimination. This type of discrimination applies to all protected characteristics. The perception-reality gap makes the task of re-educating or refreshing employees knowledge all the more important. Allen & Overy LLP 2013

5 5 characteristics We wanted to gauge what the average employee thinks is unlawful in the discrimination arena by using specific examples. We gave the respondents a list of characteristics and asked them which were/were not protected by anti-discrimination laws. Some of the results were shocking and have the potential to create quite a headache for employers. Religion or belief The statistics on religion and belief give cause for concern because the perception-reality gap is significant in places. 51% of respondents correctly answered that Christians are protected. However, almost half of the respondents thought Christians were either not protected (35%) or didn t know whether they were or not (15%). This is perplexing as virtually all mainstream religions are protected, including Christianity. Also protected are many beliefs, some of which might be considered less mainstream. For example, an employment tribunal last year controversially ruled that a philosophical belief in anti-fox hunting was capable of being protected under the anti-discrimination category of religion or belief. When we asked respondents about anti-fox hunters, unsurprisingly 66% incorrectly thought they were not protected, 22% didn t know, and only 13% got it right with a yes answer. To the best of your knowledge, which of the following defined groups/individuals are protected by anti-discrimination laws in the workplace? Yes No Don't Know Reality Christians 51% 35% 15% P BNP members 21% 55% 24% O Eco-warriors 14% 64% 23% P Anti-fox hunters 13% 66% 22% P

6 6 Discrimination at work characteristics and the perception-reality gap July 2013 The perception-reality gap may emanate from the high profile case Eweida v British Airways. In this case, the Court of Appeal ruled that British Airways dress code could lawfully prevent a devout employee from the wearing of a visible crucifix in the workplace. This decision received a great deal of negative press at the time. For example two headlines in The Telegraph read, BA wrong to ban Christian from wearing cross because it plays into extremists hands ; British Christians aren t persecuted, but they are held in contempt. This was the state of the law at the time of our survey. However, the case has now been to the European Court of Human Rights, and earlier this year Mrs Eweida finally won her case. The Court took the view that too much weight was placed on British Airways business aim to promote a corporate image, and not enough weight on a person s desire to manifest their religious belief by wearing a discreet cross, which did not detract from her professional appearance or have a negative impact on the British Airways brand. The key message for employers from the Eweida case, is that in order to objectively justify discrimination, the reason had better be a good one. Health and safety might clear the threshold but a less robust reason like corporate image is likely to fail. Allen & Overy LLP 2013

7 7 Gender reassignment Somewhat surprisingly, the question most respondents answered correctly was whether an employee going through gender reassignment was protected by discrimination laws. 69% said yes, 20% didn t know and 10% said no. The table below shows the results broken down by the age and gender of the respondents to the above question. The highest percentage of correct answers came from the age group and from women. Interestingly, there is a significant decline (10%) in yes responses from the age group to 55+. To the best of your knowledge, which of the following defined groups/individuals are protected by anti-discrimination laws in the workplace: An employee going through gender reassignment Age Gender Male Female Yes 70% 75% 70% 66% 65% 68% 71% No 5% 9% 8% 15% 12% 13% 8% Don t know 24% 17% 22% 19% 23% 19% 22%

8 8 Discrimination at work characteristics and the perception-reality gap July 2013 Disability Employees appear reasonably well-informed about disability, even in the more complex area of mental health. 58% correctly viewed a person with a personality disorder as protected by anti-discriminatory measures, with 20% not knowing. We also asked whether physical characteristics such as height or weight received protection. In the UK, unlike other continental European countries, physical characteristics (such as weight and height) are not given any special protection. However, where a person s height amounts to a disability (eg dwarfism) or the weight is a symptom of a disability (such as anorexia or diabetes), the employee would potentially be protected under disability discrimination laws. In our survey, 50% answered the question incorrectly, thinking that physical characteristics were protected. A perception this way is clearly advantageous as it is more likely that an employee will think twice before making comments/behaving in a potentially discriminating manner if they think the law prohibits the conduct. To the best of your knowledge, which of the following defined groups/individuals are protected by anti-discrimination laws in the workplace? Yes No Don't Know Reality A person with a personality disorder Physical characteristics (eg height or weight) 58% 20% 22% P 50% 37% 13% O Allen & Overy LLP 2013

9 9 Race Those protected under race discrimination legislation are potentially more numerous than the average person in the workplace thinks. Race includes colour, ethnic origin, nationality and national origins. To test this theory, we asked whether a gypsy traveller or someone with a strong Scottish accent would have workplace protection. More than half of the respondents thought a gypsy would be covered but only 37% thought the same about a Scottish employee. Both potentially have protection. Case law has established that Romany Gypsies, Scottish and Irish travellers are ethnic groups entitled to protection under race discrimination laws. The English, Scottish, Welsh and Northern Irish might all be British in terms of nationality but have separate identities with reference to national origins, and so are protected under this head of discrimination. To the best of your knowledge, which of the following defined groups/individuals are protected by anti-discrimination laws in the workplace? Yes No Don't Know Reality A gypsy traveller 53% 26% 22% P Someone with a strong Scottish accent 37% 47% 16% P

10 10 Discrimination at work characteristics and the perception-reality gap July 2013 Mimicking someone s accent, whether it is Scottish or South African, can definitely get a employee into deep water. Why is it that the working public think that a gypsy traveller is protected but not a Scottish employee? Is this another case of a high profile news story, like the Dale Farm illegal travellers site, contributing to this myth? Employers need to work hard to educate their workforces in this area in order to prevent a backlash based on myth rather than reality. The mistaken view that accents are not part and parcel of the race suite that receives protection should be of more than a passing interest to employers. Elsewhere in our survey, employees were asked what type of banter are they most likely to see at work. The answer receiving the highest number of most likely responses was age (46%), but banter based on nationality, (eg mocking an accent or judgements based on country stereotypes), came in third, 28% of whom indicating that this was the type of banter that they are most likely to see at work. Compare this to jokes about disability or sexual orientation, where the percentages were much reduced at 5% and 16% respectively. Statistics like these show there are tribunal claims out there waiting to happen. Allen & Overy LLP 2013

11 11 Age Age was the last of the characteristics to be added to anti-discrimination measure in October For many, this was the acceptable form of discrimination as it seemed legally and socially entrenched into UK culture. The stereotypical views that performance declines with age and the youth have a lot to learn are widely held. For decades, a retirement age of 65 was considered acceptable. Even now, nobody bats an eyelid with a lower National Minimum Wage for those aged under 21 and jokes about Saga holidays. This softer attitude towards age discrimination was highlighted with the abolition of the default retirement age in April Many employers struggled with managing under performing employees in their autumn years, preferring them to leave the business with dignity. Given this more tolerant approach to age discrimination, it is not surprising that our survey found that 46% said that the most likely banter in their workplace is about age (either young or old). A further 28% said it is a likely form of workplace banter. Which of the following types of workplace banter are you likely to see at work? Less likely Likely Most likely About age e.g. sending someone a birthday card saying they re over the hill or a young teeny bopper etc 26% 28% 46%

12 12 Discrimination at work characteristics and the perception-reality gap July 2013 Class A person s class is not a characteristic that is currently protected under discrimination laws. So, if employees are teased because of their aristocratic or working class backgrounds, they would not be able to bring a discrimination claim although there would be other options open to them (for example, breach of mutual trust and confidence, a term implied into every employment contract). The majority of our survey respondents (54%) correctly answered this question. To the best of your knowledge, which of the following defined groups/individuals are protected by anti-discrimination laws? Yes No Don't Know Reality Employees from either a working class or aristocratic background 31% 54% 29% P We also thought it would be interesting to know what employees thought should be protected that currently is not. Some of the responses were concerning. Comments such as white heterosexual men, regular white middle class people, white English people were not uncommon. What seems to be emerging from our survey, albeit from a minority view, is that the ordinary man in the street has been forgotten. This ordinary man seems to be white, Anglo-Saxon, middle-aged, heterosexual and Christian. The reality is that this person already receives special treatment in five categories (age, sex, race, sexual orientation and religion). Perception, rather than reality, is feeding the myth. Allen & Overy LLP 2013

13 13 Mind the gap Is there anything that can be done to close the knowledge gap? After all, doesn t every business have a Dignity at Work or similar policy, which spells out the rules and consequences for non-compliance? Most businesses do have policies. It makes commercial sense to protect the dignity of employees because happy employees are more productive employees. It also makes commercial sense to have a policy from a risk management perspective. It is a defence for an employer to show that it took all reasonable steps to prevent the discriminatory conduct from taking place, but this hurdle sets a high bar. The all reasonable steps defence would require an employer to do more than just have a policy on a shelf or on the intranet. Employees need regular training on the implications of breaching workplace Dignity at Work policies. A reminder too that employees can be personally liable for misconduct in this area serves to drive the message home. Given the commercial imperatives, our survey asked employees if they had read their employer s policy. The good news is that the majority (56%) had done so, but it wasn t overwhelming. However, when we asked whether they had received training on it, the percentage slipped to 38%. So it would appear that many policies are gathering dust. Managers too have a significant part to play in the successful operation of a Dignity at Work policy. Leading by example is one of the most effective ways of to breathing life into what otherwise might be seen as just another set of workplace rules.

14 14 Discrimination at work characteristics and the perception-reality gap July 2013 Global protected characteristics The table below shows the range of characteristics that are protected across three continents. UK France Germany Spain Be AGE Pro CASTE Soon to be protected Potentially protected under origin under race DISABILITY/HEALTH STATUS Pro FAMILY STATUS (CARE-GIVING RESPONSIBILITIES) Protection for family situation GENETIC CHARACTERISTICS/ PHYSICAL APPEARANCE Part of race Pro GENDER REASSIGNMENT under sexual identity Pro LANGUAGE Potentially protected under ethnic origin, nationality or race Pro MARRIAGE/CIVIL PARTNERSHIP under family situation Pro MORAL HARASSMENT Pro DESCENT/PARENTAGE/SURNAME under birth Pro und POLITICAL OPINIONS Pro PREGNANCY AND MATERNITY Part o RACE/COLOUR/NATIONALITY/ ETHNIC ORIGIN Pro RELIGION/PHILOSOPHICAL BELIEFS Pro SEX/ GENDER Pro SEXUAL ORIENTATION Pro SOCIAL CLASS/ECONOMIC STATUS Pro UNION MEMBERSHIP Pro Allen & Overy LLP 2013

15 15 lgium Luxembourg USA Argentina Brazil Hong Kong Singapore tected tected under some state laws tected tected under some state laws tected tected tected tected er birth Const l protection only tected under some state laws f gender Some employees protected tected Const l protection only tected Const l protection only tected tected under some state laws Const l protection only tected tected

16 For more information, please contact: London Allen & Overy LLP One Bishops Square London E1 6AD United Kingdom Tel Fax Office contacts Karen Seward Tel Sheila Fahy Tel GLOBAL PRESENCE Allen & Overy is an international legal practice with approximately 5,000 people, including some 512 partners, working in 42 offices worldwide. Allen & Overy LLP or an affiliated undertaking has an office in each of: Abu Dhabi Amsterdam Antwerp Athens (representative office) Bangkok Beijing Belfast Bratislava Brussels Bucharest (associated office) Budapest Casablanca Doha Dubai Düsseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Istanbul Jakarta (associated office) London Luxembourg Madrid Mannheim Milan Moscow Munich New York Paris Perth Prague Riyadh (associated office) Rome São Paulo Shanghai Singapore Sydney Tokyo Warsaw Washington, D.C. Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP s affiliated undertakings. Allen & Overy LLP 2013 I CS1305_CDD-36208_ADD-38367

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