Navigating Discrimination and Harassment Claims in the Workplace

The economic cost of discrimination and harassment claims in the workplace to the UK economy is £127 billion. In 2023, 4,973 people from the US, UK, France, Sweden, Germany and the Netherlands were surveyed by market research company Savanta about their experiences of discrimination in the workplace.

Of the 1,523 who were based in the UK, 22 per cent (about 1 in 5) said that they had experienced discrimination at work due to an aspect of their identity. However, the findings for people in the UK among under-represented groups suggested more experiences of discrimination, with a figure of 45 per cent for black people, 41 per cent for people from an Asian background, and a third (33 per cent) of people from the LGBTQ+ community all saying they had experienced discrimination in the workplace.

Inequalities in pay and promotion within their organisation was cited by 42 per cent of the UK employees surveyed. The research did, however, identify some positives too, with 84 per cent of people in the UK whose employer has a diversity, equity and inclusion (DE&I) task force reporting they feel it has been effective at implementing change, and 70 per cent agreeing that such training has been effective.

Tribunal statistics released for 2023/2024 had a strong focus on awards for claims of discrimination. Some examples include:

Disability – this is the protected characteristic that by far provides the highest number of successful discrimination claims each year, with there being 124 successful claims of disability discrimination in 2023/24.

Sex – the data shows a consistent rise in successful sex discrimination claims over the past few years, with 71 successful claims recorded in the latest period. The average compensation award spiked at £53,403 in the latest statistics, and this figure has been consistently and significantly rising over the past 5 years, from a low of just £8,774 in 2018/19.

Race – in recent years, race discrimination claims have also risen, with a total of 52 successful claims awarded compensation in the most recent period. This number has been rising since 2018, which saw just 22 successful claimants. The average award has also trended in the same direction, with £29,532 being the most recent figure, highlighting significant cases resulting in higher compensation.

Age – this form of discrimination saw only 12 successful claims of this nature in the most recent financial year; however, the average award was just over six figures, sitting at £102,891.

Sexual orientation – the number of successful claims linked to sexual orientation has not reached double figures for over a decade. However, the average compensatory award is often amongst the highest of all of the discrimination types. This year saw seven successful claims, with an average of £27,070 awarded in compensation.

Belief – religious discrimination was the protected characteristic that saw the fewest successful claims in the most recent reporting period, with only three successful claims noted. Of these three, the average award was £10,750, ranking as the lowest average of all of the types of discrimination claims that can be brought before the tribunal.

The impact of discrimination and harassment in the workplace is far reaching and includes:

The risk of litigation – this would include legal costs and time spent away from the business dealing with any negotiations or legal proceedings, as well as the potential for lowered staff morale and potential consequences for the business’s reputation, should the matter become public. Orders for damages or compensation made by tribunals are significant, as highlighted above. Any award made by the tribunal to a successful claimant is calculated on the basis of the claimant’s losses to the date of the hearing and, potentially, beyond. Financial compensation consists of basic and compensatory awards.

Employee engagement – the impact of discrimination on productivity and team morale is often hard to estimate in financial terms but should not be underestimated. It undermines motivation, commitment, engagement and loyalty. It can also erode job satisfaction, which in turn affects productivity and performance. Disengaged and unhappy employees will often seek to work elsewhere, adding to recruitment costs. An organisation’s reputation damaged by discrimination and harassment incidents will also find it harder to recruit.

Sickness – employees most affected by discrimination and harassment may start to take periods of sick leave, as discrimination can leave an individual anxious, depressed, stressed and even physically and/or mentally ill.

Creating a safe and inclusive workplace that is free from discrimination and harassment is not only essential for employee engagement and well-being but is also crucial for legal compliance. In the UK, employers have a legal responsibility to prevent and address workplace discrimination and harassment effectively and must prioritise prevention by having clear policies, and effective reporting mechanisms.

In this article we will explore discrimination and harassment in the workplace including the legal framework, and will discuss the procedures for reporting and addressing claims. We will also investigate best practice examples of prevention, investigation and resolution from real life.

About Discrimination and Harassment Claims in the Workplace

The UK Equality Act 2010 is a single legal framework that consolidates and strengthens various historical anti-discrimination laws, and aims to ensure that people are treated equally and fairly regardless of specific personal characteristics, known as protected characteristics. These characteristics are:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

The UK Equality Act 2010 protects the following people against discrimination in the workplace:

• Employees and workers
• Contractors and self-employed people hired to personally do the work
• Job applicants
• Former employees, usually around providing references

Under the Equality Act 2010, an individual can be discriminated against in the workplace in four main ways:

Direct discrimination – this is when an individual is treated unfairly or differently from other work colleagues because of a protected characteristic. An employee who has been denied promotion based on their gender is an example of direct discrimination. This means that a person has to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances (apart from the protected characteristic) are not materially different to theirs. The exception to this is pregnancy and maternity discrimination where formal comparators are not required.

A person can bring a claim when they are treated less favourably because they are perceived to have a protected characteristic. This might occur, for example, where the treatment is because someone is thought to be LGBTQ+.

Indirect discrimination – this is when an organisation’s policy or procedure aimed at treating employees equally is less fair to certain individuals with protected characteristics. For example, a company may require all employees to work on Saturdays. However, this is a form of indirect discrimination as it does not consider those with religious beliefs who observe the Sabbath every Saturday. It will amount to indirect discrimination unless it can be objectively justified. Objective justification is defined as showing that the measure is a proportionate means of achieving a legitimate aim.

A legitimate aim is the reason behind the discrimination. This reason must not be discriminatory in itself and it must be a genuine or real reason. Proportionate means the aim or the reason behind the discrimination must be fairly balanced against the disadvantage suffered. It must be appropriate and necessary. If there are better and less discriminatory ways of doing things, it will be more difficult to justify discrimination. For example, a women’s refuge discriminated against male applicants by specifying in a job advertisement that only women may apply. The policy is objectively justified as being an occupational requirement, as the job role can only be fulfilled by female employees.

Harassment – this is unwanted conduct related to a protected characteristic that has the purpose or effect of either:

• Violating a person’s dignity; or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for the person

Unwanted behaviour can include a serious one-off incident, repeated behaviour, spoken or written words, imagery, graffiti, gestures, mimicry, jokes, pranks, and physical behaviour that affects the person. Under the Protection from Harassment Act 1997 there is a type of harassment which is separate from the three types of harassment under the Equality Act 2010. This is behaviour that causes alarm or distress but is not necessarily related to a protected characteristic. It includes stalking, and it can be a criminal act.

Victimisation – this is the unfair or prejudicial treatment of an individual or individuals following the raising of an official complaint about an organisation or when a person becomes involved in another employee’s discrimination complaint. Victimisation may occur if, for example:

• A person alleges that they have encountered racism from a colleague and, as a result, they are ignored by other staff members.
• A senior member of staff starts to behave in a hostile manner to another member of staff who previously supported a colleague in submitting a formal complaint against the senior manager for sexist behaviour.
• An employer brands an employee as a ‘troublemaker’ because they raised a lack of job-share opportunities as being potentially discriminatory.

The law only protects someone from victimisation if they’ve done something ‘in good faith’. This means not acting maliciously. Someone is not protected from victimisation if they deliberately give false evidence or deliberately make a false allegation of discrimination or harassment.

‘Vicarious liability’ is when an employer could be held responsible if one of their employees discriminates against someone. The Equality Act 2010 says an employee and employer could both be held responsible if the discrimination happens “in the course of employment”. This means something that’s linked to the employee’s work. This could be at work or outside the workplace, such as at a work party or through social media that’s linked to work. For example, an employee makes a negative comment to someone they work with about their race at the Christmas party. The employer could also be held responsible for that discrimination unless they had already taken all reasonable steps to prevent discrimination from happening.

Recognising Discrimination and Harassment in the Workplace

Discrimination and harassment are not always overt, such as hate symbols, slurs, and hate crimes. In the workplace, the most common forms of discrimination and harassment can be far more subtle. Some of the common indicators of this include:

Biased language used in recruitment – job advertisements and job and person specifications that contain words or phrases that would have a negative impact on encouraging some applicants to apply. For example, the use of gender-biased words such as ‘competitive’ or ‘gravitas’ are male associated, whereas gender-biased words such as ‘supportive’ or ‘considerate’ are female associated. Age bias words and phrases can include, for example, ‘recent graduate’, ‘a fun and lively workplace culture’, ‘10 years’ experience’, or ‘mature’; all have the effect of precluding potential candidates.

Unfair treatment – this is probably the most common form of discrimination in the workplace. If a person is being treated differently at work and is the only person in the workplace being treated that way it could be discrimination. For example, someone is being denied training because they have recently been on maternity leave, or being overlooked for promotion because they might be nearing retirement.

Unequal pay – paying someone less than others in the same or a real or hypothetical comparator position with similar or more experience and qualifications is a form of discrimination. For example, a woman who discovers that she is paid less than a male colleague with the same experience doing the same job.

Favouritism – this occurs if favouring certain employees over others who share characteristics, or lack characteristics, of the favoured employee. For example, a colleague who is friends with the manager is offered benefits such as increased pay or promotion at an unfair rate, or more often than other deserving colleagues.

Systematic discrimination – this occurs when policies and procedures actively discriminate against someone on the basis of a protected characteristic. For example, a policy that offers benefits to married employees over those in a civil partnership, or cohabiting couples.

Stereotypes – this subtle form of discrimination is just as widespread and damaging as other forms of discrimination, and the casual nature of stereotypes can lead to wider issues of abuse and systemic discrimination. For example, making negative comments about someone’s age such as, “Oh well that’s Gen Z for you, they are all woke”, is a form of discrimination against other people, reducing workplaces to “them” and “us”.

Exclusion – this occurs when someone is consistently left out of meetings, social business events, or important communications that are relevant to their job.

Micro-aggressions – these are often covert, less obvious and hard to name or define. Micro-aggressions are often linked to unconscious or implicit bias where our brains make quick judgements about people and situations, influenced by our background, environment and experiences. They can be intentional or unintentional; whichever, they are just as harmful. For example, continually having a name pronounced incorrectly with no effort to get it right, or being asked, “Where are you really from?” with an assumption that you are not British, or being interrupted or talked over during a meeting on several occasions and made to feel that your contribution is not valued.

Here are some real-life examples of various forms of workplace discrimination and harassment:

An 89-year-old NHS secretary, Eileen Jolly, became the oldest person in the UK to win an age discrimination claim. Her superiors at Reading’s Royal Berkshire Hospital fired her, claiming that she was stuck in her “old secretarial ways” and that she had demonstrated a “catastrophic failure in performance”. Eileen was fired for not having the ability to use a modern computer. However, the employment tribunal found that “there was evidence of the claimant’s training having been inadequate, incomplete and the on-the-job training was ad hoc and not directed”. Whilst Eileen was not offered her job back she was awarded £200,000 in compensation for age discrimination.

A female broker won her sexual discrimination case against BNP Paribas. Stacey Macken told the tribunal that her mostly-male colleagues routinely subjected her to humiliating and sexist behaviour, such as leaving a witch’s hat on her desk. She also said that her boss often answered with, “Not now, Stacey” when asked a question.

As if that wasn’t bad enough, Macken claimed that the bank frequently carried out her performance reviews in a way that made light of her contributions. Unsurprisingly, this meant that she often missed out on bonuses that were dished out readily to her male colleagues, and the tribunal ruled that they couldn’t find any evidence to the contrary, and Macken won £2m from the sexual discrimination case.

A policewoman who is not disabled has won a claim against the police force for direct disability discrimination. Lisa Coffey was given a standard medical examination that revealed hearing loss upon joining the force. However, since she could pass the force’s practical hearing test, she was permitted to work without requiring any adjustments. Two years after she started working as a constable, Coffey applied for a transfer to another police force and was once again required to undergo a medical test. The results of this test were identical to the first; however, the Acting Chief Inspector refused her application because her hearing loss was likely to deteriorate in the future. The employment tribunal found this perception to be direct disability discrimination and awarded Coffey £26,616.05 in compensation.

Reporting and Addressing Claims

All employers should have a policy on how to deal with discrimination and harassment, including informal and formal action and who to go to for help. It is always important to familiarise yourself with your employer’s policy on discrimination and harassment. The policy may be called the Equality policy or Dignity at Work policy or similar.

It is a good idea to keep a diary or record of what has happened, including:

• What happened
• How it made you feel
• Dates and times it happened
• Any evidence, e.g. emails or screenshots of social media posts
• Any witnesses

Keeping a record can be especially helpful if you find talking about the experience particularly distressing.

In line with your employer’s policy, you could talk to your line manager, or another manager or HR, and ask them to talk to the person you are complaining about informally. You could take a colleague for support. If informal approaches haven’t worked, or if the incident(s) is of a serious nature, a formal complaint may be needed. Your employer’s policy will set out the process to follow, but this normally means raising a grievance in line with your employer’s Grievance policy. Raising a grievance is where you make a formal complaint to your employer, which will mean that a prompt and thorough investigation should be undertaken.

All employers have a duty of care to protect workers from discrimination and promote an inclusive and diverse environment where employee well-being is prioritised. To achieve this, employers need their HR teams to provide vital support around all discrimination issues. HR staff should take an unbiased approach while closely monitoring staff well-being.

If you make a formal complaint by raising a grievance and this does not resolve the problem, you can consider making a claim to an employment tribunal. There are strict time limits for making a claim; in most cases you have 3 months minus 1 day from the date the discrimination happened. If the time limit has passed, you can still make a claim to an employment tribunal, and it will be up to the judge to decide whether they will accept your claim.

You can make a discrimination claim regardless of your employment status or how long you have worked for your employer. If you want to make a claim to an employment tribunal, you must tell ACAS first.

Various organisations including employment law solicitors will be able to provide you with information, advice and support if you are considering making a claim to an employment tribunal. Here is a selection of them:

• Citizens Advice or a trade union representative will be able to provide you with information, advice and support.
• Mind’s Legal Line provides legal information and general advice by phone for issues of disability discrimination.
• The Equality and Human Rights Commission (EHRC) provide information, advice and support on discrimination and human rights issues through the Equality Advisory Support Service (EASS).
• Age UK provide information, advice and support on age discrimination.
• Stonewall provide information, advice and support on sexual orientation discrimination.

Investigation and Resolution

An investigation is a fact-finding exercise to collect all the relevant information on a matter. A properly conducted investigation can enable an employer to fully consider the matter and then make an informed decision on it. Making a decision without completing a reasonable investigation can make any subsequent decisions or actions unfair, and leave an employer vulnerable to legal action.

The role of an investigator is to be fair and objective so that they can establish the essential facts of the matter and reach a conclusion on what did or did not happen. An investigator should do this by looking for evidence that supports the allegation and evidence that contradicts it. It is not an investigator’s role to prove the guilt or innocence of any party but to investigate if there is a case to answer.

Investigations have to be handled fairly and employers should follow ACAS guidance on disciplinary and grievance matters. These are:

STEP 1: Organisational preparation

• Decide if an investigation is necessary
• Establish terms of reference – the rules that the investigation will follow, including precisely what needs to be investigated
• Choose an appropriate investigator

STEP 2: An investigator’s preparation

• Draft an investigation plan
• Identify who might need to be called to an investigation meeting
• Identify what evidence might need to be gathered – and how to get it
• Contact parties involved in the matter

STEP 3: Handling an investigation meeting

• Establish who can accompany employees at the meeting
• Plan what questions need to be asked
• Interview the parties involved and any relevant witnesses
• Handle reluctant witnesses or refusals to meet appropriately

STEP 4: Gathering evidence

• Arrange and agree witness statements
• Collect any relevant written records and documents, e.g. timesheets
• Collect any relevant and appropriate physical evidence, e.g. CCTV

STEP 5: Report the investigation findings

• Write an investigation report – there is a free ACAS template available to use or adapt
• Report what is likely to have happened – the balance of probabilities
• Make a recommendation where requested

STEP 6: After an investigation is completed

• Submit the report and conclude the investigator role
• Retain the report for an appropriate period of time
• Ensure any recommendations unrelated to the matter are considered

Failure to conduct a fair workplace investigation can have serious legal consequences for employers. If an investigation is biased, unfair or lacks proper procedures, it can render any subsequent disciplinary actions, including dismissal, potentially unfair or discriminatory.

When a person informs ACAS that they want to make a claim, they will offer Early Conciliation. This is when they talk to both parties about the dispute. It gives all parties the chance to come to an agreement without having to go to tribunal. Employers can request Early Conciliation if they think a dispute with an employee could lead to a tribunal claim.

ACAS is impartial, which means they are not on either side. They are there to help resolve the dispute without it going to an employment tribunal. If early conciliation or conciliation reaches an agreement, the employment tribunal hearing will not go ahead, or will end if it has started. If it does not resolve the dispute and the tribunal continues, the case will be heard in public and a decision will be made by a judge.

Preventive Measures and Best Practices

All employers must take steps to prevent discrimination under the Equality Act 2010 and public sector organisations have an extra legal responsibility to stop discrimination under the public sector equality duty. Discrimination is less likely to happen in an organisation that recognises the benefits of an inclusive and diverse workforce, for example by employing a range of people from different backgrounds.

Employers should develop and operate anti-discrimination and anti-harassment policies. These policies should be readily available to all staff, for example in the staff handbook, and should be regularly reviewed and updated. The policies should contain clear information on what discrimination and harassment mean and information on how to raise an issue regarding unfair treatment at work. It is also important that all organisational policies are impact assessed, which means checking all relevant policies to make sure they do not discriminate against anyone.

Employers should implement zero tolerance for discrimination, which is crucial to fostering a workplace culture that values fairness, equality and respect for all individuals. It establishes a clear stance against discriminatory behaviours, creating an environment where employees feel safe, supported and prejudice-free. When discrimination complaints are raised, demonstrate that the organisation conducts thorough and impartial investigations, that the process is transparent, and that corrective action is taken promptly based on the findings. With zero tolerance, employees feel confident that they can report incidents without fear of reprisal.

Promoting inclusion and respect in the workplace is a collective responsibility; it is vital that every employee understands their role in building an inclusive workplace. This can be achieved by setting clear standards of behaviour for inclusion and treating all colleagues with respect and dignity. All staff should receive training about what behaviour is acceptable in the workplace and that they must not discriminate against anyone at work. Line managers and supervisors should also be trained to recognise and address discrimination.

It is essential to prioritise the well-being of employees by ensuring that they feel fully supported and satisfied with their workplace. Building a strong, inclusive organisational culture is a foundational step in fostering engagement, commitment and a sense of belonging among team members. When it comes to creating and promoting an inclusive workplace it should be led from the top, setting an authentic, inclusive tone for all.

Employee Resource Groups (ERGs) are voluntary, employee-led communities that unite individuals with shared characteristics, experiences or interests. These groups provide a supportive environment where employees can connect, collaborate and advocate for their collective needs. ERGs empower employees to have a collective voice and advocate for their needs within the organisation. This can lead to positive changes in policies, practices and overall workplace inclusivity.

Legal and Ethical Considerations

As we have already seen, employers have a legal duty to prevent and address discrimination and harassment under the Equality Act 2010. From 26 October 2024, under the Worker Protection (Amendment of Equality Act 2010) Act 2023 (WPA 2023), employers will have a positive statutory duty to take “reasonable steps” to prevent sexual harassment of employees, adding to existing protections.

The introduction of the new duty shifts the focus from a historically reactive approach when it comes to instances of sexual harassment in the workplace, and instead requires employers to proactively identify risks of sexual harassment and take steps to mitigate these. While some organisations may already meet this duty thanks to practices adopted, others might need to strengthen or expand procedures.

While there is no guidance in the legislation on what would constitute “reasonable steps”, the EHRC has published an update to its technical guidance on sexual harassment at work to reflect the new duty.

Case Studies and Examples

McDonald’s

McDonald’s handling of sexual harassment complaints from staff in UK restaurants has attracted much attention. The reports by the BBC highlighted serious concerns in relation to complaints about racism, sexual harassment, sexual assault and homophobia. The allegations were well timed following news that the Worker Protection (Amendment of Equality Act 2010) Act 2023 had received Royal Assent.

The UK CEO, Alistair Macrow, confirmed to the Business and Trade Committee in November 2023 that the company is still receiving, on average, two sexual harassment complaints per week. The EHRC launched an investigation into McDonald’s following a series of complaints related to sexual harassment in its UK restaurants. The EHRC agreement with McDonald’s contains various commitments towards protecting its workforce from sexual harassment. These include to:

• Communicate a zero-tolerance approach to sexual harassment
• Conduct an anonymous survey of workers about workplace safety
• Enhance policies to prevent sexual harassment and improve its responses to complaints
• Deliver anti-harassment training for employees
• Introduce specific training to help managers identify areas of risk within their restaurants and take steps to prevent sexual harassment
• Support the uptake of policy and training materials by franchisees within their independent organisations to support reporting of sexual harassment
• Monitor progress towards a safe, respectful and inclusive working environment

It is worth noting that the EHRC retains the ability to vary or terminate a Section 23 agreement. To the extent that there is evidence of non-compliance, legal action to enforce the commitments can follow.

Next 

The retailer Next has lost a six-year equal pay claim comparing the pay of warehouse and shop floor staff. The value of the litigation could be in excess of £30 million. According to equal pay law, claimants are entitled to be paid the same amount as comparators of the opposite sex who are employed either to do the same work, work that is rated equivalent, or work of equal value. Where there is a pay differential between a claimant and comparator, an employer can successfully defend the claim by showing that the difference in pay can be explained by a “material factor” (the material factor defence). In the case of Thandi and others v Next Retail Limited, an employment tribunal has found that Next violated equal pay legislation by paying warehouse staff at a higher rate than shop floor sales staff. The tribunal had previously determined that the two groups were performing work of equal value.

This hearing considered whether the material factor defence could apply. Next attempted to plead material factors including market forces, market price, recruitment difficulties and the performance of the Next group and its subsidiaries. The tribunal found that the material factors pleaded by Next were indirectly discriminatory and that the indirect discrimination could not be objectively justified. During the period of the claim, sales staff were predominantly female (77.5%), while warehouse staff had a slight male majority (52.78%), meaning that the lower basic pay for sales staff disproportionately affected women. However, Next did succeed in defending some payments and bonuses that applied solely to warehouse staff. These were related to specific challenges Next faced in incentivising and retaining warehouse staff at the particular times at which the bonuses and one-off sums were paid.

This is a first instance decision, which does not bind other tribunals. It is nevertheless an interesting decision, in particular in that it demonstrates the difficulties employers may face in attempting to justify a pay differential based on market forces alone. Next has announced that it will be appealing the tribunal’s decision.

Conclusion

The ever-increasing awareness of discrimination issues, combined with the potential for substantial compensation, may lead to individuals feeling more empowered now to challenge acts of discrimination in the workplace. This trend is encouraging and emphasises the importance of employers taking proactive measures to prevent discrimination in the workplace. By implementing robust diversity and inclusion initiatives, providing training, and ensuring compliance with the relevant legislation, organisations can benefit from an improved workplace culture, productivity and employee satisfaction.

With new statutory duties on employers to take reasonable steps to prevent harassment coming into force, and more media attention on issues such as sexual harassment, it is essential for organisations to prioritise creating a discrimination-free workplace environment.

Combating discrimination and harassment in the workplace is everyone’s responsibility. Prevention and proactively mitigating risk is always better than reactive firefighting. Putting measures in place to minimise the risk of a toxic work culture developing and promoting a positive climate at work for everyone based on personal respect and dignity will help to prevent inappropriate behaviour.

Should inappropriate behaviour occur, it is everyone’s responsibility to call it out or report it. If you are concerned about what is happening to you or others in your organisation, and feel able to, you should always speak up. By identifying and reporting discrimination, everyone can be kept safe from harm. Even if you are not certain, you should report your concern. If you feel this would be inappropriate, your report gets no response, or if you want further guidance you can contact:

The Equality Advisory and Support Service

Citizens Advice

Protect the UK’s whistleblowing charity