Discrimination at work occurs when a person or group of persons are treated less favourably compared to another person or group of persons because of their background or any other personal characteristics recognised at law as a ‘protected’ attribute.
Discrimination, like bullying or harassment can be direct or indirect. Victimisation occurs where someone is treated less favourably because they have made a complaint about discrimination.
Employees are protected from discrimination and victimisation at work by state and territory discrimination legislation, federal discrimination legislation and the Fair Work Act 2009 (Cth). It is unlawful to discriminate against an employee, or potential employee, due to protected attributes such as their age, race, sexual orientation, religion, marital status or pregnancy. Further, if an employer takes ‘adverse action’ against an employee because of, or substantially motivated by a protected attribute (such as age, disability or gender) they may be found in breach of the general protections provisions of the Fair Work Act 2009 (Cth). The accessorial liability provisions mean managers or HR professionals who are involved in any ‘adverse action’ may also be liable in any claim made against the company. ‘Adverse action’ is a broad concept including dismissal of an employee, disciplinary action, altering an employee’s position to an employee’s prejudice, discriminating against an employee or threatening to commit any adverse action. Simply, whilst it is not unlawful to discipline an employee, it is unlawful if the disciplinary action is motivated by, or substantially motivated by, an employee’s protected attribute.
Employees have a number of avenues available to them if they believe they have been discriminated against or subject to adverse action at work. These actions commonly include general protections claims before the FWC, general protections claims before the Federal Court or Federal Circuit Court or pursuing a claim through the relevant state or territory anti-discrimination body. Regardless of where the claim is pursued these undoubtedly have the potential to cause a great deal of headaches for employers!
In order to mitigate the risk of a discrimination or ‘adverse action’ claim, it is important that any decisions made by your business are linked to the genuine requirements of the role and all action is taken in a fair way that is not prejudiced. Having a sound policy is a common tool used by employers to ensure any decisions are made in a considered and legally consistent way. The importance of a sound anti-discrimination policy, whether on its own or embedded in a more comprehensive ‘bullying, discrimination and harassment’ policy is essential in order to demonstrate to any court or commission that your business takes a strong stance on anti-discrimination and has created a culture on zero tolerance. Like any good policy, ensuring staff are trained and understand the policy is essential.