Nationality discrimination at work
- Matt Gingell
- Updated: Mon, 19th Dec 2016
Our client faced nationality discrimination at work. He was turned down for promotion in favour of less qualified foreign nationals, paid less than his foreign peers and then selected for redundancy. This was a form of race discrimination.
We secured a settlement payment in excess of three years’ pay for our client. We also advised him on the most tax efficient way to structure the settlement agreement.
In order to achieve such a result we did have to file a claim in the Employment Tribunal. The claim was withdrawn when the case settled before the hearing date set by the Employment Tribunal. We secured our costs which were paid by the employer as part of the settlement.
How we arrived at settlement
Our client came to us having received a redundancy settlement agreement. We discussed the settlement agreement and realised the case was not straight forward. So, we set about:
- Reviewing the evidence to see if there was evidence of discrimination. This exercise included submitting a discrimination questionnaire to the employer in the form prescribed under the relevant legislation.
- Reviewing evidence to see if a proper selection for redundancy had been carried out by the employer.
- Raised the question of whether our client had legal expenses insurance as part of his mortgage or banking arrangements.
Often employers think that employees have no option but to except what’s on offer. However, court action may be worth considering. Particularly where the employee is a senior executive on a sizeable salary with benefits or where there is a case for discrimination.
Evidence of nationality or race discrimination
Our client instructed us only when he had been selected for redundancy. Like many employees, he had been reluctant to take action against his employer any earlier. The fear is losing his job. However, he had thought that UK employees suffered discrimination compared to their foreign national equivalents. Discrimination was practised in a number of ways against the UK employees:
- Being paid less in terms of salary and bonuses for performing the same role as their foreign counterparts.
- Not being offered the same opportunities as the foreign national counterparts for training and exposure to better experience.
- Being turned down for promotions that they were better suited for compared to foreign nationals.
Obtaining the evidence
Like many employees, our client lacked hard evidence. In order to obtain the evidence we advised the matter should be looked at from different angles which were not just related to pay:
We established what training our client had received, compared with similar employees. Our client had kept a record of training courses. From this record we obtained information which showed that the same level of training was not provided to all employees.
Appraisals and development
We considered the appraisal system and input into development our client received. A career path had not been mapped out for our client. However, foreign nationals did have career path plans. On many occasions our client had not received appraisals at all, whereas others had.
Pay structure, banding and bonus payments
We sought to obtain details on salary and bonus payments. We also wanted to obtain details on the banding and ranking system used to determine pay across the group. This information was the most difficult to obtain. We obtained it through an order for discovery in the Employment Tribunal.
Unfair selection for redundancy
We also established that our client had been unfairly selected for redundancy because:
- Our client had raised a grievance into his pay and terms;
- The employer used biased indicators for the pool. The indicators were designed to achieve the result the employer required;
- The pool of employees had been wrongly cast.
It became clear that the employer’s motivation was not genuine redundancy. It was a desire to push our client out as cheaply as possible. Such motives are not unusual with employers.
Obtaining information from the employer
Many employers are reluctant to disclose pay and bonus information, particularly where it concerns their methodology and rationale for decisions.
We pressed the employer to disclose details. We only received scant details which did not reveal core information was provided. We then commenced proceedings in the Employment Tribunal as we knew we could then request an order for disclosure. The Employment Tribunal agreed the order. The employer made attempts to settle the case before the deadline for disclosure.
Measure of damages
Compensation for discrimination is uncapped and can run into hundreds of thousands of pounds. Using our experience of discrimination cases we provided an assessment of the likely level of compensation. We considered:
- Financial losses in terms of salary and bonuses.
- Financial losses suffered due to a failure to promote.
- Future losses given that he would need to find work.
- Compensation for injury to feelings
Negotiated settlement agreement
The employer issued a settlement agreement. There were several offers all expressed as final before we reached the final offer. We finally secured a settlement for our client of in excess of three years net pay taking into account:
- The lower pay rate he had received;
- Stress suffered;
- Unfair selection for redundancy.
The settlement included an agreed reference. The reference had to be provided both in writing and verbally. The employer was forced into an indemnity to help ensure compliance. This meant that our client could move on and more easily find a new job.
Once the settlement was agreed, we withdrew proceedings in the Employment Tribunal.
Matt Gingell is a partner in the employment law team who has worked on a variety of discrimination cases. Matt is also experienced in dealing with unfair treatment in the work place and finding appropriate solutions.