Managing Equality and Diversity- Case Study Jakob Roan - Essay Example

? Managing Equality and Diversity - Case Study Jakob Roan Number and Number Number of Words: 3,017 Introduction ‘Equality’ means that work-related discrimination should be removed in order to guarantee that each and every worker within a business organization is given equal work-related opportunities whereas ‘diversity’ is all about the need to value the differences between two or more different people1. Over the past few years, legal issues related to sexual harassment at work throughout the United Kingdom remains high. Because of the increasing importance of work equality, UK government strongly supports the development of public policies that protects the equal employment rights of our local citizens. In 1999, the UK government introduced the Public Sector Duties in order to protect not only the women but also the men on work equality.2 The Equality Act 2006 was introduced to promote equality and diversity in relation to the importance of human rights.3 Because of some amendments necessary to strengthen the equality law in the United Kingdom, Equality Act 2010 was created and now in force in order to redefine the most recent employment-related claims at the Employment Tribunal office. Against who and Potential Legal Claims that Jakob Roan can bring to an Employment Tribunal Lucas and Tom Sexual harassment at work is not limited to the act of physically forcing an employee to have sex with an immediate boss or vice versa. Particularly in the case of Jakob Roan, verbal harassment like a constant regime of homophobic behaviour has been evident when Lucas and Tom were making funny faces while calling Jakob with the use of some offending names and remarks like: “a prude”, “a blooming gay boy”, suggesting that “he should be more macho…”, and spreading rumours to other employees that they should avoid working with Jakob alone in the office because they can get AIDS by being too close to him. This increases Jakob’s chances of winning a tribunal case4. Regardless of whether it was intentional or unintentional, Jakob was able to witness Lucas spreading homophobic remarks about him where the company’s customers could hear. The mere fact that Lucas and Tom were browsing a pornographic magazine of women during working hours was already unethical. Furthermore, forcing Jakob to join Lucas and Tom go through the pornographic magazine was already a violation of Jakob’s human right to avoid staring at some pornographic materials. Under Part 2 section 26(1)(b)(i)(ii) of the Equality Act 2010, it was clearly stated that “A person (A) harasses another (B) if the conduct has the purpose or effect of violating B’s dignity and creating intimidating, hostile, degrading, humiliating or offensive environment for B”. It means that harassment within the workplace may occur when the dignity of another person is being violated and degraded as a result of unwanted work-related practices that are sexual by nature5. As an individual, Jakob has negative perception with regards to the use of pornographic materials. The fact that Lucas and Tom was forcing Jakob to join them as they browse the magazine was already a violation of Jakob’s dignity and human rights to refuse to participate. Based on the guidelines stated under Equality Act 2010, it is clear that Jakob has the option and privileges to file a tribunal case against Lucas and Tom for harassment on the grounds of sexual orientation. Specifically the case of Jakob Roan who emotionally, mentally, and psychologically suffered from the adverse consequences associated with sexual harassment on the grounds of sexual orientation is very much similar to the case of Morse v Future Reality Ltd [1996]6 wherein Ms. Morse felt sexually harassed when a group of her male co-workers started downloading “sexually explicit images from the Internet” even though the boys were not directly pointing at her. Dave Under Part 2 section 13(1) of the Equality Act 2010, direct discrimination means that “A person (A) discriminates against another (B) if, because of a protected characteristics, A treats B less favourably than A treats or would treat others”7. Since Dave – as the owner of the 24-hour Tours was treating Lucas and Tom more favourable than Jakob even though Lucas and Tom were showing misconduct within the workplace environment, Jakob could file an employment tribunal case against Dave for practicing direct discrimination against him. Under Part 2 section 27(1)(b) of the Equality Act 2010, it was clearly stated that “A person (A) victimises another person (B) if A subjects B to a detriment because A believes that B has done, or may do, a protected act”. Under section 27(2)(a) of the Equality Act 2010, identified a protected act as “bringing proceedings under this Act”. It means that victimization is all about causing another person to become a victim of more detriments after making an effort to legally file a complaint or proceedings that are somehow related to the protected employment issues such as the direct discrimination and harassment at work8. When Jakob mentioned his desire to seek for a legal advice, the initial reaction of Dave was to threaten Jakob that he will not provide him with a reference in respect of his future job applications. Since Dave was making Jakob a victim of more detriments after showing his desire to file a legal complaint or proceedings, Jakob could file another tribunal case to Dave as clearly stated under section 27(1)(b) of the Equality Act 2010. There are quite a lot of previous cases to prove that the use of offensive and sexually inclined languages should never be tolerated within the working environment and that employers are to be made liable for the conduct of his/her employees9. Considering that harassment and bullying within the workplace are two of the most commonly unacceptable behaviour, Dave has the duty and responsibility not only in making the working environment free from any forms of unacceptable work behaviour and practices but also to treat all of his employees with equal rights and respect. Instead of taking time to protect and hear the sentiments of Jakob with regards to the sexual harassment on the grounds of sexual orientation as caused by Lucas and Tom, Dave only told Jakob that “most men would be grateful for a chance to see some of those magazines. I think you’re just being overly-sensitive about this”. Dave even called such indecent act as “harmless fun”. With no further action made, hearing such statement directly from the owner means that the company owner is obviously tolerating such indecent practices within his territory. The problem with Dave’s acceptance of Lucas’ and Tom’s negative behaviour and attitude within the working environment is that the mere fact that the rest of Dave’s employees are aware that the business owner is open to such attitude and behaviour at work even without the need to undergo disciplinary issues at work could only make the company establish wrong cultural norms which somehow violates the principles of work equality and diversity. Another obvious sign of a direct discrimination at work is when Dave told Jakob that he needs to transfer to the day shift in case he could no longer cope with the “harmless fun”. Despite knowing the fact that Jakob has been experiencing serious health detriments as signs of serious emotional disturbances caused by the continuous workplace bullying from his co-workers and the company’s customers, Dave remained firm with his decision not to even take some time and effort to talk with Lucas and Tom regarding the universally accepted working practices, behaviour, and cultural norms. In case Dave was treating each of his employees with fair and equal treatment, Dave should have exerted an effort to correct the wrongful work-related behaviour and cultural practices that was created by Lucas and Tom. If Dave really cared about the health and socio-economic welfare of his employees, he could have exerted more effort to come up with a win-win negotiation with Jakob concerning his current employment status. Part 2 Ch. 1(11)(12) of Equality Act 2010 identified “sex” and “sexual orientation” as few of the main characteristics that are heavily protected by the Act10. Even though the main problem was triggered by Lucas and Tom, Dave – as the owner of the 24-hour Tours can also be sued for direct discrimination, victimization, and for tolerating and promoting sexual harassment behaviour within the working environment11. Legal Processes on How Jakob – as the Complainant can Make those Claims As a standard operating procedure, it is a common practice on the part of the Employment Tribunal personnel to ensure that Jakob and Dave went through a pre-conciliation process to solve these three major complaints (i.e. harassment at work, direct discrimination, and victimization). Therefore, Jakob should consider doing his own research with regards to how he could go about a pre-claim conciliation process which he needs to undergo before he could officially file legal complaints against his colleagues and employer12. Aside from the need to apply for a legal claim within three months before Jakob’s employment was terminated or three months after Jakob started complaining about the work-related sexual harassment, Jakob should first identify the specific cases he wanted the Employment Tribunal to hear before filing for legal claims. Eventually, a significant part of the legal processes on how Jakob – as the complainant could file tribunal claims includes: (1) the completion and submission of ET1 claim form which are readily available from the Citizens Advice Bureau (CAB), HM Courts and Tribunal Service, and an Employment Tribunal office; and (2) send the completed form either online or post mail to any of the nearest Employment Tribunal office13. As soon as Employment Tribunal office receives the completed ET1 form, the Employment Tribunal office would immediately send a copy of the said form to Dave – the complainant’s employer who will be requested to immediately respond within the next 28 days after the form was mailed14. When making a claim under the Employment Tribunal processes, the complainant and the accused are requested to attend a series of formal and informal Hearing a final decision can be made to each of the Employment Tribunal cases15. For instance: Before inviting Jakob and Dave or Jakob and Lucas and Tom to attend a hearing case management, these individuals will be required to attend multiple hearings which includes: (1) the case management discussion which will inform each one of them about the case direction; (2) a pre-hearing review wherein witnesses will be called upon to serve as legal evidences to the case; (3) a full-hearing wherein each of the stakeholders’ liability will be publicly announced; and (4) a review hearing which could take place in case the other party would find new evidences that will convince the judges to re-open the case. Since witnesses from each party will be called upon to answer questions that directly concern the problem, cross examination in a judicial mediation is likely to take place16. Possible Defences that can be raised by Dave as Jakob’s Employer Even though the case of Jakob is very much applicable for the grounds of harassment at work, direct discrimination, and victimization, Jakob should be aware that before he could be able to file a legal claim at the Employment Tribunal, he needs to exhaust all other options he has to solve this particular employment problem with Lucas, Tom and Dave. To be able to increase the chances of winning a tribunal claim, Jakob should have in mind all the potential defences that Dave could use to prevent him from legally filing a case at the Employment Tribunal court. In general, employers and employees have different rights and self-interests to consider when solving employment problems. As a common knowledge, it could be very costly on the part of Dave to receive a formal employment tribunal complaint from one of his employees. To avoid the need to go through a series of long formal grievances procedures17 and pay for a large sum of monetary obligations as a result of Jakob’s emotional, psychological, and physical health detriments as triggered by the presence of continuous harassment at work, there is a strong possibility that Dave would definitely consider the need to solve this particular work-related misunderstanding through effective communication and agreement processes. There will always be a risk wherein Dave could deny the efforts made by Jakob to communicate with him about the on-going employment problem between Jakob and the other two employees. To enable Jakob receive more information about the ways on how he could resolve this issue without having the need to file a legal case to an Employment Tribunal, it is highly advisable on the part of Jakob to seek the professional assistance of the Advisory, Conciliation and Arbitration Services (ACAS) on how Jakob should properly and more economically deal with his employment rights issues for free18. Grievances are pertaining to the “concerns, problems or complaints that employees raise with their employer”19. Based on the standards of behaviour when dealing with grievances and disciplinary actions as set by the Acas Code of Practices, Jakob can either resolve the problem through Dave’s grievance or disciplinary process or not. Basically, the act of carefully and directly sorting out the work-related harassment with Lucas and Tom could somehow make Jakob effectively solve his employment problem even without the need to file legal claims at the Employment Tribunal. Using the same option, Jakob can also resolve his problem with Dave concerning the issue on direct discrimination and victimization. Remedies that Jakob may consider out of solving his Case There are quite a long list of other alternative solutions that could enable Jakob effectively solve his employment problem even without the need to undergo a long and tedious formal grievance process at the Employment Tribunal office. Among these includes: (1) asking for financial compensation as a result of possibly losing his job at the company and the psychological and emotional damages he had to go through as a result of sexual harassment; and (2) conciliation in workplace disputes. Compensation for discrimination claims includes employment issues related to the injury of employees’ feelings. With this in mind, the Vento bands set the limit with regards to the amount of financial compensation Employment Tribunals could award the claimants20. Since the case of Jakob includes not only harassment on the grounds of sexual harassment but also unlawful direct discrimination and victimisation, it will be up to the Tribunal to assess the actual injury to feelings as seen in the case of Jakob21. Depending on the assessment made by the Tribunal, the Vento Guidelines provided significant increase financial compensation in each of the three brackets for compensation as: (1) upper band (?18,000 – ?30,000) reward for most serious cases; (2) middle band (?6,000 – ?18,000) reward for serious cases; and (3) lower band (?50022 – ?6,000) reward for less serious cases23. Upon analyzing the given case, the fact that Jakob finds the inaction of his employer to correct the negative work attitude and behaviour of Lucas and Tom as clear signs of direct discrimination, entering into a professional agreement between Jakob and Dave that Dave being the owner of the company will be obliged to immediately impose disciplinary measures to correct the working attitude and behaviour of Lucas and Tom based on the universally accepted work practices as stipulated under the UK promotion of equality and diversity within the work places. Basically, conciliation in workplace disputes is an effective remedy in terms of providing Dave the opportunity to improve the working environment which could somehow affect his employees’ long-term loyalty and overall performances for the company’s success. Given that other employees within the said business organization could witness the process of imposing disciplinary actions against Lucas and Tom could make the rest of the employees think twice before they start violating the laws related to equality and diversity. Having in mind the possibility that Lucas and Tom can be suspended from work in case Jakob would file another complaint against Lucas and Tom for continuous harassment would mean a higher chance wherein Lucas and Tom would exert extra effort to change their attitude. By learning how to become considerate and become more sensitive about other people’s feelings, Lucas and Tom will be able to effectively comply with the work requirements as stipulated under the guidelines of work equality and diversity. As a result, Dave will not only be able to save a large-sum of money out of losing valuable employee such as in the case of Jakob but also decreases the risk wherein the company will have to spend more money to hire and train other people to do Jakob’s current job responsibilities. Conclusion and Recommendations The main concept of work equality and diversity was developed to enable the business owners to maximize the potential of each employee within the business organization.24 Considering the differences among the employees’ preferences, Phillips (1992) revealed that the implementation of work diversity within the workplace is useful in solving problems related to work equality.25 Even though Jakob has the option to file claims against Lucas and Tom for sexual harassment on the grounds of sexual orientation and Dave not only for his failure to protect the rights of Jakob as his employee and on the grounds of direct discrimination and victimization, Jakob should be aware that it is the Tribunal who makes the assessment as to how much financial compensation he could receive from injury to feelings. In case Jakob has made a firm decision about filing claims at the tribunal office, Jakob should carefully study all possible defences that Dave could raise when Jakob files a claim at the tribunal office. To prevent wasting time and effort, Jacob should go through the initial requirements and proceedings he needs to take before filing a claim against Lucas, Tom, and Dave. Aside from the risk of not receiving any compensation award, the process of filing claims at the tribunal office can be very costly, long and time consuming. In case Jakob decided not to file claims against Lucas, Tom, and Dave, Jakob should consider asking for conciliation in workplace disputes. By doing so, Jakob could encourage Dave to immediately impose a disciplinary action concerning the work attitude and behaviour of Lucas and Tom. *** End *** References Anne Phillips, ‘Feminism and Liberalism Revisited: Has Martha Nussbaum Got It Right?’ (2001) in Constellations, 8(2), 249 - 266 ‘Employment Tribunals: an introduction’ (Directgov. 2011 a) accessed 2 September 2011. “Equality Act 2010. 2010 c. 15. 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