The issue of less favourable treatment?

I heard a story today about an ET case that took an interesting turn.

The case related to discrimination.  The employee (we’ll call him Jim) had been bullied and discriminated against for many years by a  manager (we’ll call her Flora).    I once employed a HR Manager who had been bullied by Flora  and I spent the best part of two years trying to pick up the pieces.  So I was aware of her reputation, but I had never met her.

What frustated me is that “everybody” knew that Flora was a bully, but the senior leadership team at that Trust seemed to be blind to her behaviour.  Flora helped a lot of under-performers “move-on”, and perhaps this is the reason why?

Jim decided to tackle this issue head-on by submitting an ET1 claiming discrimination.  Not only did Jim need to demonstrate to the Tribunal that he had been discriminated against, but that he had been subject to less favourable treatment as a result.  

The case was listed for a hearing, and witnesses were called.   Flora’s line-manager took the stand, and said: 

Yes, Jim had been discriminated against….but Flora behaved like this with everybody. 

In other words, the Trust admitted to the Tribunal that Flora was a known bully, and that she bullied a lot of people. The Trust won their case, as Jim could not prove that he had been subjected to less favourable treatment.   Everyone had been treated badly by Flora.  

Whilst this was an interesting legal move for the Trust, what benefits did it bring?   And now that Flora is a known bully, what actions are the Trust going to take?

I don’t know Jim, but I can imagine that taking the Trust to a Tribunal was a very difficult decision to make, and I applaud him for it.  I’m just sorry that some clever lawyers found a way to defend the Trust which, in the end, does not benefit anybody.

The Impact of the Equality Act in the NHS

 We all know that the Equality Act 2010 received Royal Asset on 8 April 2010 (blah, blah) and that it replaced 9 major pieces of existing discrimination legislation (plus 100 other instruments) with one single Act and also introduced new law.  But what does it specially mean for NHS Trusts?

1. We need to start using new language:  “protected characteristics” is the new phrase to represent the different diversity strands:   age, disability, gender reassignment, marital and civil partnership  status, pregnancy and maternity, race, colour, nationality, ethnic origin, religion or belief, sex and sexual orientation.                                  
2. The Act harmonises the definitions associated with equality (ie: direct discrimination, indirect discrimination, harassment & victimisation).  Although it isn’t advisable, some HR departments include the different definitions in their policies.  Therefore, if you are one of these Trusts, you should review your policies – ideally taking out the section that provides the definitions, but otherwise updating them as appropriate.
3. From next April, there’s a requirement to publish data relating to gender pay.  Whilst it may seem that Agenda for Change has already embedded equality into the system, it is worth taking a look at the average pay between men and women per pay banding.  You might get some interesting results!
4. One of the most challenging areas will be to determine how best to implement the use of positive action in recruitment.  I think that this subject is so broad (and new) that a separate blog post should be dedicated to this.  But for now….spend time thinking about it and built it into your “Inclusion” action plan.
5. In terms of Tribunals, there are two new points to consider.  The first is the new freedoms for Judges to make recommendations that will (apparently) benefit the wider workforce, not just the claimant, where the Tribunal makes a finding of unlawful discrimination.  Let’s hope that Judges are up to date on current thinking in relation to health-care management and clinical practice.  I envisage this area will be a minefield.
6. And secondly,  The introduction of dual discrimination:  outlawing discrimination on the basis of two (and no more) protected characteristics (eg an asian woman can claim race and gender); This will make ET cases more interesting.

All Trusts need to keep a look out for the CEHR‘s new Employment Code of Practice and take action as appropriate (and again, another blog post will be coming once that’s published).

And on a serious note, the spirit of the new legislation is to ensure that organisations, such as the NHS, demonstrate they have a real commitment to equal opportunities not just by having in place a policy but also by demonstrating that the policy is actively implemented, monitored and reviewed, and that responsive action is taken;  How many Trusts can say they have “real commitment”? And that’s where the real challenge lies.