Ade's Harassment and Discrimination at Work
Ade's coworkers have been continuously criticizing her on the grounds of her gender, marital status, and ethnicity. Despite being assigned the role of team leader, her subordinates fail to treat her with the respect and support she is due. Rory and Phil assert that a lady Ade's age ought to be in the kitchen cooking for her husbands. They keep making references to how a lady her age should be caring for her grandchildren. Though their comments may look like mere teases, they demonstrate that the two believe that Ade is not entitled to employment. The comments by Ade’s colleagues belittle her and make her less deserving to work for Telenet, especially in her capacity as a leader. The comments by the two colleagues can be regarded as harassment because of the feeling that they show that the two feel that they are more deserving to employment opportunities than Ade. The teasing can be treated as harassment that is based on both sex and age of the victim. Another key issue in this scenario is Rory’s belief that non-whites should not hold senior positions of employment. Though this belief is secret, there are chances that some of Ade’s actions have shown it. Therefore, Ade will be relying on some of Rory’s actions or utterances in the past that may portray her as less deserving to hold the leadership position while alluding to the issue of race.
Sources and application of the law
Part 2 chapter 2 26(1) of the Equality Act 2010 defines harassment as a situation when a person engages another in unwanted conduct that is associated with a protected characteristic. An act meets the criteria of harassment when it violates the dignity of another person. An action is regarded as harassment if it creates a hostile, intimidating, offensive, humiliating or a degrading environment for another person. Part 2 chapter 2 26(2) defines harassment as any action that may not necessarily be unwanted or a violation of a person’s dignity but the perpetrator shows the intention of humiliating and degrading the target. Even if the targets of the perpetrator are not achieved, showing that they intended to create a bad environment for the victim in regard to the protected characteristics will make them legally viable for harassment.
Chapter 1 Section 8(1) of the Equality Act 2010
defines the protected characteristic of marriage and civil partnership. Any reference to an individual that is connected to their civic partner is treated as harassment if it is aimed at intimidating, humiliating or degrading the target or their partner. Violation of the protected characteristic of age is defined in Chapter 1 Section 5(1) and 5(2) of the Equality Act 2010 as any reference to a person of a particular age group using derogatory, intimidation, offensive or humiliating terms and actions. According to Chapter 1 Section 11(1) of the Equality Act 2010, the protected characteristic of sex refers to any reference to a person being a man or a woman. Harassment in the perspective of this characteristic can therefore be defined as referring to a person as a man or a woman with the intention of creating a hostile, intimidating, humiliating or degrading environment. Chapter 1 Section 8(1) of the Equality Act 2010 defines race as characteristics that allude to ethnicity and national origins, nationality and color. The protected characteristic of race entails reference to an individual of a particular racial group. Harassment entails specifying a person’s racial group with the intention of creating a hostile, intimidating, offensive, humiliating or a degrading environment.
Discussion and consequences of failure to follow law
In Essop v Home Office UKBA (2015), Mr. Essop and his colleagues brought a case of indirect discrimination on the basis of race and age. The group of immigration officers had been candidates in an examination that was set to come up with a list for promotion. The court found out that older non-white candidates had their pass rates lowered. The court ruled that there is no need for a claimant with a protected characteristic to show that they were disadvantaged. If the examination of the action or standards can prove that there was an intention to disadvantage the claimant, they are already disadvantaged and are entitled to compensation. Therefore, Ade does not need to prove that the actions of her colleagues disadvantaged her.
Okyere-Whalley v Nando’s Chickenland Ltd (2011) brought out the central role that the employer plays in protecting the employee. In the case, the claimant was denied an employment opportunity but was not told the exact reason for the action. The claimant proved that she had been given less favorable treatment but the company had failed to prove the basis of that kind of treatment. This case applies to Rory’s treatment of Ade. If Ade receives any less favorable treatment but Rory fails to prove its basis, Ade is justified to bring a claim against Rory citing racial discrimination. Telenet should also be enjoined in the case as a respondent because it has a role to play towards protecting its employees. In Dawson V Chief Constable of Northumbria Police, the court made a decision that an employer is liable in a case where an employee is a victim of harassment from two or more employees.
Conclusion and recommendations for organizational practice
According to Wrench and Modood (2001, p. 3) entities have been working towards avoiding issues such as racial, sexual and age discrimination by aligning their activities to the various legal provisions that seek equality. Compliance with these legislations enhances productivity and gives an entity a good image. An employee is entitled to emotional wellbeing while at the workplace. Efficiency and productivity are enhanced if an employee has a sense of belonging to an entity (Robertson and Cooper, 2010, p. 324). It is the role of Telenet and its employees to ensure that all the members of the workforce are comfortable and are protected from all forms of harassment and discrimination. The employer should take an initiative to have all the employees educated on the importance of respect and avoidance of harassment. The employees should be familiar with the protected characteristics under the Equality Act 2010 (Thomas and Rose 2010, p. 171). They should then be informed of the importance of ensuring that their utterances and actions are not in reference to any of these characteristics in a manner that exhibits the intention to intimidate, humiliate or degrade colleagues (Blyton and Turnbull 2004, p. 16).
Suzy's Claim Related to Beheading Videos Incident
The key issue here is the creation of a hostile working environment by both the employee and colleagues. The fact that employees keep watching ISIS beheading videos in her presence means that she may not be able to work efficiently and deliver the tasks allocated to her by an employer. Telenet expects Suzy to perform certain tasks to a specified level within the appropriate deadlines. The two colleagues who spent the entire morning watching videos did not make any reasonable contribution towards the organization. This may mean that Suzy and her dedicated colleagues have to work more to compensate for the laziness and ensure that the department meets all its mandates. The major issue in this scenario is the role of the employer in creating an enabling environment that can enable the employees to efficiently perform their tasks. ISIS is a terrorist organization that uses fear and intimidation to achieve religious and political agenda. Watching their videos in the presence of other people can be arguably regarded as perpetuation of the aims and targets of the organization. In many cases, ISIS targets individuals of certain ethnic and racial backgrounds with violence. Therefore, Suzy may also file a claim based on religious and racial harassment.
Sources and application of the law
An employer is partly responsible for the wellbeing of an employee in regard to health and safety. The employer has a responsibility to come up with a safe system of work that guarantees the physical and emotional health and wellbeing of the employees. Various Factories Acts have been put in place since 18-02 to set up minimum standards on factors such as working space, ventilation, and cleanliness. The Employer's Liability Act 1969 automated liability for employers regarding all the equipment used in a work setting. Since the employer is the direct beneficiary of the tools and equipment in the working area, they also bear the liabilities that result from them, including physical, emotional, and mental harm to the employees. The Health and Safety at Work etc. Act 1974 set up most of the provisions that have been built on to develop better legal provisions to protect the worker in the contemporary working environment. Many provisions on creating a conducive environment for workers are harmonized across the EU member states and are overseen by the Health and Safety Executive. This body mainly follows up on the employer in its efforts to ensure that the employee is treated well.
The Equality Act 2010 protects employees from discrimination and harassment in the workplace. Directive 2000/78/EC by the European Union inspired the UK to create this act, which prohibits unfair treatment based on the protected characteristics defined in Part 2 Chapter 1 of the act. Part 2 Chapter 2 26(1) of the Equality Act 2010 defines harassment as any conduct that violates a person's dignity or creates a hostile, humiliating, intimidating, or offensive environment for another person. An individual who perpetrates such action, whether knowingly or unknowingly, is liable under this section of the act. Therefore, even if an employee is not directly harassed in relevance to the protected characteristics, they can bring a claim if the behavior by the perpetrator can be considered unwanted. Under Part 2 Chapter 2 26(4) of the Equality Act 2010, conduct qualifies to be considered harassment if the victim finds it hostile, intimidating, offensive, humiliating, or degrading. The court will determine whether the action meets the criteria on the basis of universal reasonability. Therefore, if the action is committed by a colleague, both the employer and the employee should be listed in the claim as respondents.
Discussion and consequences of failure to follow the law
In Wilsons & Clyde Coal Co Ltd v English, the House of Lords ruled that an employer is personally liable for the carelessness exhibited by their employees. This is because all employers have an opportunity to come up with the best workforce that can create a conducive working environment for all the people involved. However, it is important to note that employers also bear a liability when they create a bad working environment for employees. In ICI Ltd v Shatwel, an experienced quarry worker blew up a college after mishandling a detonation. The contributory negligence of employees does not, however, negate the role that an employer should play in protecting all their workers. An employer who increases the risk of harm to an employee is liable under the law. In Fairchild v Glenhaven Funeral Services Ltd, an employer should give attention to all the issues that employees raise regarding their comfort and safety at the workplace. The employer should then work towards reducing the employee's exposure to this danger.
In Dawson V Chief Constable of Northumbria Police, the court ruled that an employer is liable for the harassment of an employee by two or more colleagues within the workplace. In this case, Suzy is a victim of actions of three different employees within her department. It is the role of the employer to ensure that the individuals are restrained from the actions that qualify as harassment. If the actions put in place do not work, an employer can even resort to termination of employees' contracts to promote a good working environment for the rest of the workforce.
Conclusion and recommendations for organizational practice
It can be regarded that Suzy was harassed on the basis of the protected characteristics of race and religion by being exposed to the ISIS videos. It can be considered that the employees furthered ISIS' targets of intimidating other people by letting Suzy see the beheading videos (Farwell 2014, p. 50). In this case, the role of an employer in protecting an employee from harassment and discrimination will be highlighted. The computers which Suzy's colleagues used in watching the beheading videos belong to Telenet. The entity is supposed to work towards protecting its employees from the misuse of its equipment by their colleagues. When the matter was reported, the supervisor should have reacted by trying to help Suzy work in a conducive environment. Shifting the rogue employees is one of the options that the manager had. Another option would entail warning or educating the three rogue employees. Another option would have entailed arrangement of the work station such that the activities of the workers do not interfere with each other (Fombrun 2000, p. 87).
Farzana's Claim on Sex Discrimination
In the UK, the law does not restrict employers on who they should hire and those whose applications should be turned down. This means that an employer can turn down one's request but cannot be persuaded into giving reasons for their action. This largely applies to private entities such as Telnet. However, there are legal provisions that mandate public institutions and entities to set up an open recruitment process that allows people to understand why their applications were rejected. The private sector has freedom when it comes to its hiring process and can do so secretly without public scrutiny. However, many organizations have come up with rules, regulations, and codes that guide their employment process. A running contract with an employer is a prerequisite in a claim where an employee complains about discrimination during recruitment, hiring, and promotions. However, information available to the public, such as job advertisements, interview questions, and employment policies that are made public, are subject to legal liability under the Equality Act 2010. The key issue in this claim is discrimination based on sex. Farzana feels that Telenet's decision to exempt her from the recruitment was based on her gender rather than age. It is important to note that Farzana has a running employment contract with Telenet and the two have an employer-employee relationship.
Sources and application of the law
If Farzana makes a claim, it will be based on the Equality Act 2010 that defines sex as one of the protected characteristics. Chapter 2 Part 2 of the Equality Act 2010 categorizes discrimination as prohibited conduct under the act. It divides discrimination into direct and indirect forms. Direct discrimination is where a person treats another one less favorably than they would treat others due to a protected characteristic. In such a claim, the complainant will have to prove that other people who had similar characteristics or qualifications were given better treatment. The complainant must also exhibit that this better treatment was based on differences in the perception of the perpetrator on the protected characteristic. Indirect discrimination entails formulation of a law, policy, and procedure that gives a certain group a disadvantage because its members are different from the rest of the group on the basis of a protected characteristic. Farzana's claim can only be based on direct discrimination as defined in Chapter 2 of the Equality Act 2010 since the only known policy regarding the graduate recruitment scheme is based on the age of workers.
Discussion and consequences of failure to follow the law
In Aurelie Fhima v Travel Jigsaw Ltd, Aurelie Fhima launched a successful claim after refusal of her job application by Travel Jigsaw Limited. The company operates 24 hours a day and required an employee who could work on shifts for at least five days each week. She had explained in the interview that she needed to observe the Sabbath and therefore would not be available on Saturdays. The rejection letter stated that her application was rejected because she was not flexible enough to work on Saturday. This case shows that an employer who operates a criterion, provision, or practice that places individuals of a certain characteristic at a disadvantage is committing an act of discrimination and can be sued for compensation by the victims. In Okyere-Whalley v Nando's Chickenland Ltd, the court decided that an employer who is predisposed to a disadvantage by these procedures and rules does not necessarily have to prove that they were initially disadvantaged. In the case of Aurelie Fhima v Travel Jigsaw Ltd, the court awarded her compensation while citing injury to her feelings. In Michalak v Mid Yorkshire Hospitals, the employment tribunal ruled that an employer will be held liable for the physical and emotional suffering that their employees undergo due to discriminatory actions and policies. This case involved direct discrimination where several individuals were responsible for propagating discrimination against the complainant with the intention of denying her access to employment on the basis of her gender. This case involved direct discrimination. Members of staff who were different from Michalak in regard to protected characteristics of race and sex received preferential treatment.
In O'Brien v Ministry of Justice, the supreme court ruled that incentives such as pension and promotion should be determined by the employer. The employer should make this determination based on factors such as merit and experience and avoid guidelines that are based on protected characteristics such as gender. In many cases, these incentives are contained in employee contracts. In this case, there exist no clear provisions in Telenet's human resource policy that discriminate employees on the basis of sex. This means that a claim filed by any employee on sexual discrimination should involve proof that the complainant received less favorable treatment compared to members of the opposite sex.
Conclusion and recommendations for organizational practice
Farzana has no strong case against her employer and should not, therefore, lay a claim on sex discrimination. Proof of direct discrimination based on gender only exists where male employees have been treated better. There is no proof of secondary discrimination based on this protected characteristic since Telenet's policy only touches on age. However, there is a need for Telenet to get rid of the age restriction since it may result in legal suits in the future.
References
Aurelie Fhima vs Travel Jigsaw Barbulescu 61496/08.
Blyton, P. and Turnbull, P., 2004. The dynamics of employee relations. Palgrave Macmillan.
Dowson & Ors v Chief Constable of Northumbria Police (Rev 1) [2010] EWHC 2612 (QB) (20 October 2010).
Employers' Liability (Compulsory Insurance) Act 1969.
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22.
Farwell, J.P., 2014. The media strategy of ISIS. Survival, 56(6), pp.49-55.
Fombrun, C.J., Gardberg, N.A. and Barnett, M.L., 2000. Opportunity platforms and safety nets: Corporate citizenship and reputational risk. Business and society review, 105(1), pp.85-106.
Home Office (UK Border Agency) v Essop & Ors [2015] EWCA Civ 60.
Imperial Chemical Industries Ltd v Shatwell: HL 6 Jul 1964.
kyere-Whalley v Nando's Chickenland Ltd ET/1810170/10.
Legislation.gov.uk. (2010). Equality Act 2010. [online] Available at: http://www.legislation.gov.uk/ukpga/2010/15/contents [Accessed 30 Nov. 2017].
Lewis, J., 2006. Work/family reconciliation, equal opportunities and social policies: the interpretation of policy trajectories at the EU level and the meaning of gender equality. Journal of European public policy, 13(3), pp.420-437.
Michalak v Mid Yorkshire Hospitals NHS Trust ET/1810815/08
Okyere-Whalley v Nando's Chickenland Ltd ET/1810170/10.
Robertson, I.T. and Cooper, C.L., 2010. Full engagement: the integration of employee engagement and psychological well-being. Leadership & Organization Development Journal, 31(4), pp.324-336.
The European Union. Directive 2000/78/EC. [online] Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML [Accessed 30 Nov. 2017].
The Health and Safety at Work etc. Act 1974.
Thomas, C. and Rose, J., 2010. The relationship between reciprocity and the emotional and behavioural responses of staff. Journal of Applied Research in Intellectual Disabilities, 23(2), pp.167-178.
Wrench, J. and Modood, T., 2001. The effectiveness of employment equality policies in relation to immigrants and ethnic minorities in the UK. ILO.
Wrench, J. and Modood, T., 2001. The effectiveness of employment equality policies in relation to immigrants and ethnic minorities in the UK. ILO.
