Take a biff at bias

Do you think you’ve been treated unfairly at work because of who you are? You probably know that it is illegal to discriminate against people because of their race or sex without good reason. There are also laws to protect you from being judged on your religion or age or a disability. But discrimination can be subtle. Even when minorities are clearly under-represented, as HT’s leadership census showed last week, it’s hard to prove individual cases.

So how can you prove you’ve been a victim of unfair discrimination and what can you do about it? It helps to know your rights. The Sexual Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 decree you must have the same rights and opportunities as other employees or interview candidates who have comparable experience and skills.

And the notion of discrimination has got broader. Since December 2003, a European Union employment directive has provided protection in respect of sexual orientation, religion or belief. And from December 2006 a further European employment directive will extend grounds for claims to include age discrimination.

Fiona Smith, employment lawyer at Devonshires Solicitors, says she is curious to see exactly how the age discrimination law will operate. Will it make allowance for employers, for example, who don’t want to employ someone close to retirement age? “We’re awaiting draft regulations on the new law. It will be interesting to see how it’s treated at both ends: for people who are seen as too young for a job and people nearing retirement age,” she says.

So are there any circumstances when employers or institutions are able to discriminate? Employers are certainly allowed, by law, to encourage applications from certain sectors of the population. For example, the National Housing Federation’s Leadership 2010 initiative aims to ensure that half of Britain’s 200 largest housing associations are led by women within six years – although this target is in danger of being missed, as we revealed last week (HT 22 April, page 7).

The NHF’s head of human resources, Chris White, says: “There is something called positive action. This is about creating opportunities and enabling access for people from all backgrounds to apply for jobs, thus increasing the pool and diversity of applicants. This can be used to promote and increase applications for under-represented groups. It could take the form of offering additional training courses, for example.”

But when it comes to the selection process, employers are bound by law not to discriminate. So it would be illegal to employ someone on the grounds of their sex, religion, race, disability or sexual orientation, unless the job demands it. The Commission for Racial Equality’s senior media officer Rebecca Crosby says: “Section five of the Race Relations Act, which makes it lawful to discriminate when ‘being from a particular racial group is a genuine occupational qualification’, is the exception most frequently used.”

But what do you if you have been been turned down for a job, for instance, and you suspect the employer has discriminated against you illegally? Devonshires’ Smith says the first step to take is to ask the employer for feedback: “This may bring out a reason the potential employee hadn’t thought of,” she says. “In the absence of a satisfactory answer, you can serve the employer with a statutory questionnaire on its equal opportunities policy, training of interviewers and profiles of other candidates, which they’re obliged to fill in – subject to other legal obligations. Then if you are still unhappy you may want to consider bringing a claim.”

Unison recommends claimants seek legal representation, but warns that employment tribunals do not award costs, so even in successful cases the settlement may not meet legal bills. A spokesperson says: “You’ve got to produce a set of facts to show discrimination has taken place. If you can do that, the burden of proof shifts to the employer. When we take a case, we have a good chance of winning, but that’s because we know the cases which we can win.”