Throughout the history of employment law, discrimination has always been one of the biggest challenges faced by employers. In the years following the introduction of the Equality Act 2010, reporting about discrimination has been more widespread than ever, and with this high level of media coverage, employers would be forgiven for believing that perhaps employees would be more careful in order to avoid allegations of harassment and discrimination. Unfortunately, discrimination is still present in all sectors of our economy, and a recently reported case involving the Royal mail demonstrates just how far we have yet to go to remove discrimination from the workplace.
Ms Nixon was an employee of Royal Mail and worked as a driver in its national distribution centre in Northampton. She brought a claim against the company alleging that she had bullied and harassed by a male colleague because of her sex.
It was alleged that, during an overnight shift on 17-18 March 2017, Ms Nixon claimed that the colleague, Mr Mistry, had pulled and attempted to pull her hair; stated that she should be “back at home and in the kitchen”; accused her of trying to get out of her duties; and called her and another colleague “arsey”.
Mistry had occasionally acted as her line manager. Nixon made a formal complaint about his behaviour and he was immediately removed from managerial duties.
On small positive outcome from this situation was that this caused Royal Mail to offer all staff additional training on bullying and harassment.
At the Employment Tribunal
The Tribunal did not look too kindly on Mr Mistry’s comments and found the suggestion that she should be “in the kitchen” related to Nixon’s gender and therefore amounted to harassment and sex discrimination.
In respect of the hair-pulling, Ms Nixon would have needed to show that this pulling of her hair was linked to her being a woman, and she was therefore being treated differently to male colleagues.
While Royal Mail argued that Mr Mistry could as easily pull long hair worn by a male employee, the employment judge said that “boys pulling girls’ hair has been an act of sexual harassment since most of us were children in the playground”.
“In our judgement, therefore this particular effort at creating discomfort or humiliation was clearly related to gender and is an act of harassment for which the claimant is entitled to a remedy”.
Nixon also alleged at the tribunal that she had been victimised by seven different managers at different times during her employment, including Mistry, after they became aware of the complaint she had made.
These incidents allegedly included being questioned about a pattern of sickness absence that had emerged, challenging her about whether she had used the correct documentation to request time off for trade union activities, and an argument with a colleague who questioned her release for trade union activities.
In order to succeed in a claim for victimisation, Ms Nixon would have needed to demonstrate that these actions were a result of her raising her complaints about Mr Mistry’s behaviour. However the tribunal found that these incidents had not amounted to victimisation and could not be linked to the complaint she made against Mistry. She also claimed that Mistry had stared at her and followed her around the yard. The tribunal did not have enough evidence to find this had been harassment or victimisation.
Points to note for employers
It is clear that discrimination is still present in the workplace, and in a time where reporting allegations of discrimination has never been so easy, employers need to make sure that their staff are aware of how they can and cannot behave at work. Employers should provide staff with regular training in relation to equality and diversity, and be aware of the consequences if their actions should be found to be discriminatory or bullying in nature.
Discrimination will be difficult to eradicate in its entirety, but employers will be in the best position if they have clear and robust policies to allow they to deal with such complaints, and staff are all made aware that they should take care with their actions at work.
