Employment Tribunal claims have been steadily rising since the abolition of the issue fees at Tribunals for employees making a claim. The latest statistics suggest that individual claims have risen by 18 per cent. A significant number of claims involve issues directly related to discrimination and the protected characteristics as defined in The Equality Act 2010

The protected characteristics which people may possess are:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Race
  • Pregnancy and maternity rights
  • Religion and beliefs
  • Sex discrimination
  • Sexual orientation

It is illegal to discriminate against protected characteristics and if the Employment Tribunal finds that an employer has discriminated there is no limit to the award that can be made to the employee for damages.

Daniel Theron, a partner, commented "it has never been more important for employers to train their senior staff on how to close down an argument with staff. There have been recent cases where, during the course of an argument between managers and staff, heated raised voices and a loss of control of the conversation has led to discriminatory remarks being made resulting in substantial awards being made by the Employment Tribunal against the employer. " Daniel went on "whilst, of course, managers and their staff can disagree, employers are advised to forewarn their managers that should a disagreement become heated, the conversation should be ended and depending on the reason for the disagreement, the matter should either be taken to the HR department or resumed at a later date when tempers have cooled."

Bianca King won an award of £15,000 for a series of incidents in part related to her pregnancy and maternity leave. Company director George Dodds made a tasteless remark when Ms King informed him that she was pregnant. Two months later he called her into a meeting and then announced that she was to be dismissed due to the financial difficulties that the company was experiencing. He rescinded the dismissal when Ms King pointed out she would be taking maternity leave. The relationship between Ms King and Mr Dodds deteriorated and he began shouting at her and criticising in front of other staff. The situation further deteriorated culminating in Ms King taking her case to the Employment Tribunal.

When awarding Ms King damages the judge stated that "...This form of behaviour directed to [Ms King] by Mr Dodds had not been in evidence prior to [her] pregnancy. On one such occasion [she] was so upset she had to leave a group video call and went to the toilet in tears..." He went on to say "these acts of unfavourable treatment were carried out by Mr Dodds because Ms King advised them that she was pregnant ... No lawful or indeed any plausible alternative exists for that treatment..."

In a similar case Tony Finn an employee of 24 years standing, who was abruptly dismissed following an argument involving shouting and insults, between Mr Finn and shop floor supervisor Jamie King, where Mr King referred to Mr Finn as "bald" followed by an expletive. When outlining the tribunal's decision the judge said "It is difficult to conclude other than that Mr King uttered those words with the purpose of violating [Finn's] dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him," the judgment found, by his own admission, "Mr King's intention was to threaten [Finn] and to insult him. In our judgment, there is a connection between the word 'bald' on the one hand and the protected characteristic of sex on the other." Mr Finn's damages will be announced at a later date and can be expected to be significant.

The lawyers in Giambrone & Partners employment team point out that the financial impact on a business does not rest with the legal fees and the award for damages, if granted. The time factor in building a defence and the time taken out of the office by staff as witnesses can amount to a considerable cost. This may create a negative atmosphere in the workplace and unrest between colleagues, having a negative impact on the business overall. There is also reputational damage to the business, both external and internal. Unless a negotiated out-of-court settlement to the claim can be arrived at, the whole matter will be played out in a public court where journalists, business rivals and clients can be aware of all the details of the case.

In addition, the legal costs involved in an Employment Tribunal case are generally borne by each party, although there is provision for a costs order or a wasted costs order if the Tribunal sees fit. Generally, should it appear that an incident of potential discrimination has occurred within the workplace, employers may be well-advised to take a commercially pragmatic approach to a potential claim and deal with this by way of without prejudice settlement agreement rather than protracted proceedings. This may allow for better use of funds and resources. Staff training and early-stage legal advice are the best defences to the risk of discriminatory claims

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.