By Mark Cox, Director and Joanna Knoth, Senior Associate
Everyone has the right to work in an environment that is free from harassment, bullying and discrimination. Discrimination on the basis of race, gender, age, religion (or other protected attributes – see below) violates someone’s right to be treated with respect, dignity and fairness.
Bullying, harassment and or discrimination can damage the affected person’s wellbeing, work performance and job security, and it can be destructive to a business by creating a negative workplace culture.
It can expose an employer business to direct liability, where the business engaged in the discrimination, or vicarious liability for the discrimination engaged in by one of their employee’s where the employer cannot show that they (the employer) took reasonable steps to prevent that discrimination from happening.
What is Discrimination in the Workplace?
Discrimination happens when you are treated less favourably than others because of a personal attribute about you rather than your ability to do the job.
It is unlawful to discriminate against someone due to their protected attributes:
- Race, colour, national extraction or social origin
- Sex, gender identity or sexual orientation
- Physical, intellectual, mental or psychiatric disability
- Pregnancy or potential pregnancy
- Marital status, relationship status and family or carer’s responsibilities
- Political opinion
- Trade union activity
Examples of discrimination occurring in the workplace can include:
- Job refusal
- Being dismissed or having shifts cut down
- Denial of training opportunities, transfers and promotions
- Not being paid the same as someone doing the same job with the same experience and qualifications
- Exclusion or isolation by co-workers
- Having information you need to do your job deliberately withheld
- Being given impossible tasks
- Being subjected to taunts or abuse that references the protected attribute
Examples of Workplace Discrimination
Discrimination may be intentional or unintentional, direct or indirect. Discrimination can come in the form of jokes and offhand comments that seem harmless to or even go unnoticed by the perpetrator.
The below examples show some of the different ways in which discrimination can occur in the workplace.
Mary is six months pregnant. After ten years working at an accounting firm, she applies for a senior position that has just opened up. Despite having more experience and qualifications than the other applicants, she was passed over. When she asked the manager, he said: “I need someone who will be more dedicated to the position.”
Ryan works on a construction site. His co-workers recently found out he was gay and have started calling him “princess”.
Annie works in a toy store and has a physical disability preventing her from carrying heavy items. She recently found out her co-workers earn more than her despite having the same experience and working just as hard. When she asked her manager about it, she said it was because “you just don’t carry as much weight around here.”
The Difference between Harassment, Bullying and Discrimination
Discrimination occurs where someone is treated less favourably due to a particular protected attribute, even if the treatment isn’t openly antagonistic – for example, not getting a promotion because you are pregnant, or being the subject of “joking banter” by reference to that protected attribute – and even where it is indirect – for example an employer may say they are open to employing people with disabilities, but do not provide appropriate access.
Harassment is when someone is treated in a way that is offensive, humiliating, intimidating or threatening because of a particular attribute like coming from another country.
Sexual harassment is unwelcome advances or attention of a sexual nature.
Bullying is repeated unreasonable behaviour that places the affected person’s health or wellbeing at risk.
Bullying and harassment are considered discriminatory behaviour if they are motivated by a protected attribute of the victim, like a disability. Example 2 shows a situation where harassment is occurring due to discrimination.
Fostering a Positive Workplace Culture
It’s important to ensure that employers foster a positive workplace culture that is free of harassment, bullying and discrimination. At MDC Legal, our specialist workplace lawyers use their extensive experience in HR legal issues to help minimise the risk of discrimination. We assist with the preparation of specific policies and can deliver training or inductions.
We can also help employees who have experience discrimination, harassment or bullying at work, and employers who have received claims or complaints from employees.
See Recent Article: Sexual Harassment – Award of Aggravated Damages