13 December 2019 - Article
It is sixteen years since the UK first explicitly prohibited discrimination against people at work on the grounds of sexual orientation. Although the number of claims actually decided in the employment tribunal is relatively small compared to other forms of discrimination such as sex or disability, the number of claims that reach a tribunal hearing are an unreliable indicator of how much sexual orientation discrimination is actually taking place in UK workplaces.
Discrimination comes in many guises. It may range from a single ill-judged comment to a sustained campaign of discriminatory harassment by a group of people against one individual. It may take more subtle forms such as marginalisation, failure to promote or develop a career, arranging social events that are not inclusive, inexplicably low bonuses or appraisal ratings, heavy handed management or seemingly unjustified dismissal.
People vary enormously in their response to discrimination – some choose to ignore it; others are made physically or psychologically ill by it. Most sit somewhere between these two ends of the spectrum, suffering a range of emotional symptoms (inside and outside work) and potentially suffering financially.
Complaining of discrimination, whether formally or informally, can require considerable courage. When the subject matter of the complaint relates to one of the most intimate and personal aspects of a person’s being – their sexuality – then the stakes are very high, emotionally as well as financially. Few individuals rush to complain against the organisation who pays them or holds their career in their hands.
The impact on the employer against whom a complaint is made is also potentially painful and damaging – financially and in terms of staff morale and reputation. Both sides have a great deal to gain by handling complaints responsibly and fairly from the outset. An employment tribunal will provide a solution of last resort, but the costs of obtaining a resolution in a tribunal should not be underestimated.
Unless trust between the employee and the employer has completely broken down, the best advice for both sides is to use the internal procedures designed for managing complaints – usually the grievance, harassment or even whistleblowing procedures. Some employers also have confidential hotlines for reporting suspected wrongdoing, or employee support services where a situation can be discussed confidentially with a counsellor. These can be a useful first step for an individual who is worried about the consequences that will follow once a complaint is raised with the employer.
There are some key points to remember when making or investigating a complaint.
For the employee:
- Raising a complaint is a courageous step; garner support (and a third party perspective) from close confidantes before you do it.
- Ask yourself what you need at this point. Once you raise a matter with your employer it is difficult for a responsible employer not to act. Raising a complaint but asking for it to go no further is generally unhelpful. Employers can take action but if you really need emotional support your employer is unlikely to be the best source.
- Once you are ready to raise a complaint make sure you have read the relevant internal procedure and understand how it operates; if it is unclear, don’t be afraid to seek clarification.
- Most internal procedures suggest first taking informal steps to try to stop unwanted behaviour. If you have tried this without success, or are too uncomfortable to do so, consider who you might wish to approach for help. It might be HR or it might be someone else.
- If you have decided to pursue a formal complaint, you are entitled to be accompanied at formal grievance hearings. But ask to be accompanied from the outset (for example at investigation meetings) by someone you can trust and rely on – a colleague or, if you are in a union, a trade union representative. Many employers prefer it if an employee raising a sensitive complaint has someone with them to support them throughout.
- Ask for the complaint to be treated confidentially, but understand that absolute confidentiality cannot be guaranteed if the complaint is to be investigated and resolved effectively. Try to set parameters that are reasonable for you and workable for your employer.
- Ask for clarification about the process, the potential outcomes and what you can expect to be told throughout and at the end of it. Be clear as to what you want.
For the employer:
- Ensure that your policies and procedures are clear and accessible.
- Ensure that – from the top down – your organisation makes clear that discrimination is not tolerated. A policy goes some way to achieving this but it is worthless if it is ignored in practice. Senior leadership play a key part in creating an inclusive and diverse workplace.
- One of the most effective practical measures you can take is to provide both your HR team and management with training in responding appropriately to complaints. This requires:
- An understanding of discrimination law and the effects and risks of discrimination at work;
- A thorough knowledge of the employer’s own policies and procedures;
- An ability to treat complaints seriously without rushing to judgment;
- Flexibility and emotional intelligence; and
- The ability to manage expectations about confidentiality and potential outcomes.
- Dealing with discrimination complaints is upsetting and challenging, but also contains valuable lessons about how the organisation can best protect its staff from inappropriate conduct and itself from the adverse consequences of inappropriately handled complaints. Some organisations treat complaints as a simple process of investigation and automatic denial. Such an approach rarely results in a positive resolution and in the longer term can create a culture in which staff do not feel confident to raise sensitive issues at all.
- Where a complaint has substance but you are concerned about the legal or practical repercussions of admitting this, take advice.