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Discrimination: Illegal or just unfair?

22 February 2010

We all know how it feels to be treated unfairly. But to show you are being discriminated against involves taking a giant step into a complex legal maze

Around a third of all the complaints that were lodged with employment tribunals last year concerned discrimination. Of these, over half centred on ‘equal pay’.

Next, were sex discrimination claims, with over 18,000 lodged. Another 850 were for discrimination on the grounds of religion or belief. In general, less than 5% of all the claims lodged were successful.

Many of us have had the feeling that we were not being treated fairly – but this is not necessarily illegal.

The key to taking a legal case is being able to prove that you are being treated differently to someone else on the grounds of your gender, race, sexuality or any of the other issues mentioned in the box on the right.

The PCS approach

‘Discrimination’ can be one of the most difficult areas of employment law to understand. The complexity of the legislation, coupled with the difficult demands that have to be proven to win a discrimination case, mean that many fail to reach the doors of an employment tribunal.

Our approach to helping members is based on trying to settle cases informally between the member, their rep and their employer, wherever possible. Only those cases that have a reasonable chance of success – and which cannot be resolved internally – are taken as far as a tribunal hearing.

Resolving problems internally can lead to a much wider and more effective settlement than a tribunal can provide. This can include an apology, better systems or standards, career mentoring and improved promotion chances.

PCS urges members to give their reps as much background information as possible to help them take the issue forward. We also recommend contacting your rep as early as possible as this allows the necessary steps to be taken to progress your case.

Think you may be experiencing discrimination? Here is what to do next

  • Keep a diary of events – note down who said or did what, whether any complaint was raised and the outcomes
  • Identify comparators – it is not enough to show ‘unfair’ treatment, you have to prove that someone has been treated more favourably, and that this was because they are of a different gender, race etc
  • Speak to your local PCS rep without delay – you may only have three months less one day from the date of the act of discrimination to make a complaint to an employment tribunal. Your local rep will want to seek legal advice before supporting you in any complaint and will need time to obtain this. You will also have to lodge a grievance before making a complaint to a tribunal
  • When making a grievance ensure that you state clearly that you believe you have been discriminated against
  • Consider issuing a questionnaire – this is something that your local PCS rep can assist with. Questionnaires allow workers who think they may have been discriminated against to ask a series of questions of their employer in order to clarify important issues.

Grounds on which discrimination claims can be brought

  • Gender (including transgender)
  • Race
  • Disability
  • Age
  • Sexual orientation
  • Religion or belief

Other grounds for less favourable treatment:

  • Pregnancy
  • Trade union membership
  • Trade union activity
  • Working part time
  • Being on a fixed term contract

Learn more at www.pcs.org.uk/equality