Start by keeping a diary
Keep a chronology of events, record what happened, when it happened and who was involved or witnessed it.
Then have your notes ready and contact a BMA employment adviser on 0300 123 1233 as soon as possible, to talk and find out what to do.
What is discrimination?
People are different from one another in many ways and the way in which they approach work.
Acknowledging, understanding, and appreciating these differences can help to create a workplace which is flexible enough to meet different needs and preferences, and creates a motivating and rewarding environment.
Discrimination exists in different forms:
This occurs when someone is treated less favourably than another person because they have a protected characteristic or because they are perceived to have a protected characteristic (discrimination by perception).
Direct discrimination also occurs when a person is being treated less favourably because they are linked or associated with someone who has a protected characteristic. This kind of discrimination is sometimes referred to as discrimination by association. This has been extended, from race, religion or belief and sexual orientation, to cover sex, gender reassignment and disability.
An example of direct discrimination
An anaesthetist refuses to work with a colleague because they believe the colleague to be gay, irrespective of whether the colleague is gay or not (discrimination by perception).
A consultant is overlooked for promotion because their partner has undergone gender reassignment (discrimination by association).
This occurs when there is a rule, policy or practice that applies to everyone but which particularly disadvantages people who share a particular characteristic.
An example of indirect discrimination
An employer who requires staff to commit to working from 8pm to 11pm every evening indirectly discriminates against women, who are more likely to be primary carers of children.
Indirect discrimination has been extended to include disability and gender reassignment. Moreover, indirect discrimination can be justified only if it can be shown that it is necessary to meet a legitimate objective in a fair, balanced and reasonable way.
Consideration should be given to whether there is any other way to meet the objectives that would not have a discriminatory effect, or that is less likely to disadvantage people who have a protected characteristic. Although pregnancy and maternity are not specifically included, any policy or practice that would put pregnant women or new mothers at a disadvantage could constitute direct discrimination on the basis of sex.
This is defined as unwanted conduct related to a protected characteristic, although, the protected characteristic does not necessarily have to belong to the victim. Harassment can also be unwanted conduct that is sexual in nature.
In both these cases the conduct must have the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for them.
An example of unwelcome physical contact
This may range from unnecessary touching or brushing against another person's body, physical assault, coercing sexual intercourse, physical threats, insulting or abusive behaviours or gestures. This may also encompass invading someone's personal space; by standing very close to him or her where this is unnecessary.
An example of unwelcome written, visual or physical interaction
This may include sending unwelcome emails, notes or pictures, displaying or sending offensive material (for example, displaying pin-ups of males or females in states of undress), making obscene or offensive gestures, persistently sending unwanted gifts, or following, spying or stalking someone.
An example of unwelcome verbal conduct
This may include the making of remarks and comments about appearance, lewd comments, sexual advances, innuendo and banter, the making or repetition of offensive or stereotyped comments, jokes or songs, the making of threats or the making of patronising comments (for example, comments which repeatedly draw attention to a person's disability or impairment).
The definition of harassment has been extended so that it now prohibits harassment based on association with, or perception of, a protected characteristic.
Examples of harassment based on perception or association
A GP partner makes offensive remarks and jokes about people with autism to another GP partner who has a son with autism (harassment based on association).
A nurse spreads rumours and makes offensive comments because they believe a colleague is Muslim, irrespective of whether the colleague is a Muslim or not (harassment based on perception).
This occurs when someone is treated badly because they have been involved with an action in relation to the Equality Act. Examples include making or supporting a complaint or raising a grievance about discrimination or because it is suspected that they have done, or may do, these things.
A person does not have protection under the Act from victimisation if they have made or supported a malicious, false or knowingly untrue complaint.
An example of victimisation
A Trust manager gives a specialty doctor unrealistic or impossible deadlines after they have made a formal complaint of discrimination.
A consultant talks negatively about a junior doctor behind his back and makes disparaging, ridiculing or mocking comments after he complained of bullying.
The protection against victimisation has been strengthened. The victim is no longer required to show that they were treated less favourable in comparison to someone else who was not involved in an action under the Equality Act; the victim only needs to show that they were treated badly.
What does the law say?
Equality legislation has been simplified with over 116 separate pieces of legislation brought together into a single Act, the Equality Act 2010 which came into force on 1 October 2010.
The nine main pieces of legislation that have merged are:
- The Equal Pay Act 1970
- The Sex Discrimination Act 1975
- The Race Relations Act 1976
- The Disability Discrimination Act 1995
- The Employment Equality (Religion or Belief) Regulations 2003
- The Employment Equality (Sexual Orientation) Regulations 2003
- The Employment Equality (Age) Regulations 2006
The Equality Act 2010 makes it unlawful to discriminate on the basis of any of the protected characteristics.
What are the protected characteristics?
The Equality Act 2010 covers the same groups that were protected by the previous equality legislation but extends some protections to groups not previously covered, and also strengthens particular aspects of equality law.
The 'protected characteristics' in the Act are:
- Gender reassignment
- Race (this includes ethnic or national origins, colour and nationality)
- Religion or belief
- Sexual orientation
- Marriage and civil partnership
- Pregnancy and maternity
Making a complaint
Claims submitted to Employment Tribunals must be received within the three-month period immediately after the alleged act of discrimination occurred.
- If the act of discrimination happened on 1 March, the claim must be received by the tribunal on or before 31 May.
- If the act of discrimination happened on 5 March, the claim must be received by the tribunal on or before 4 June.
This is a statutory time limit and has been set by Her Majesty's Courts and Tribunal Service. Therefore, it is advisable that individuals take the first alleged act of discrimination from which to calculate their time limit.
This is particularly important in harassment complaints. If the time limit is calculated from the last alleged act of harassment, then the previous acts will be out of time for consideration by the tribunal and this could limit compensation, unless the Tribunal rules that it is a continuing act.
The three-month deadline means it is essential that there is no delay in contacting the BMA for support.
The employment adviser will listen carefully to the member's concerns and will advise accordingly. The member will be advised, not only of the legal position but also on the best strategy for addressing the member's concern.
Learn about the conditions for BMA membership
Learn about the benefits of being a BMA member
I don't want to make a complaint. Can things be resolved informally?
Sometimes. In our experience it is preferable for all concerned if a complaint of discrimination can be resolved informally. It is important to note that informal resolution must be speedy to be effective.
Our objective in the first instance will, therefore, be to try to resolve issues without the need to pursue a formal complaint, including an application to an employment tribunal, alleging unlawful discrimination.
The time limit of three months less one day from the date on which the act of discrimination occurred means that it may be necessary to submit an application to the tribunal to ensure that the member's interests are fully protected.
How do I submit a formal complaint to my employer?
In certain circumstances it may not be possible, or appropriate, to seek an informal resolution of the member's complaint.
In these circumstances the matter will be referred, in the first instance, to the employer's procedure for dealing with complaints of alleged discrimination. Serious allegations of harassment are normally dealt with under the employer's bullying and harassment policy or disciplinary policy.
Not all employers have exactly the same procedure but the following features should be common to all disciplinary policies.
Common features of employers bullying and harassment or disciplinary procedures
- The investigation into the complaint will be confidential, as far as is compatible with a thorough investigation.
- There will be different procedures for addressing complaints that employees make against fellow employees, patients, visitors, employees of other organisations, etc.
- The complaints procedure will be separate from the employer's grievance procedure, but there will be rights of representation in line with the provisions of the grievance procedure.
- There will be specific provision to deal with complaints against a person who, directly or indirectly, manages or is managed by the complainant.
We have a range of services to support you.
- Peer support
- UK wellbeing support directory
Call our free and confidential helpline on 0330 123 1245