After Brexit and the election of Donald Trump there has been growing concern about an increase in racist and sexist behaviour. The intensified presence of intolerant and extreme political ideologies on the news appears to have emboldened some people to be more open with their prejudiced points of view. When this takes place at work it is easy to feel trapped and unable to speak up. 

What should you do and what are your rights if your boss or colleague makes sexist or racist comments? The law prohibits a wide range of discriminatory behaviours at work. If someone at your work is making these kinds of comments the chances are that they are acting in a discriminatory and unlawful way. 

The Equality Act 2010 makes it against the law to treat someone less favourably because of their race or sex. If your boss treats you or a colleague differently and the only reason for the difference is race or sex, then this is called direct discrimination and it is unlawful. If your boss makes jokes or comments related to race or sex these may amount to discriminatory harassment. To be unlawful, the behaviour must be unwanted and either violate your dignity, or create an intimidating, hostile, degrading, humiliating, or offensive environment for you.

If you or someone you work with is experiencing discriminatory treatment you can do something about it and the law gives you some protection if you do. Your two main options are: (a) raise it informally with the person making the remarks or with another responsible person, such as your HR Manager, or (b) make a formal complaint in writing. If your company has internal procedures you should follow the appropriate procedure, which will be either the Dignity at Work procedure or the Grievance procedure. If they don’t have such policies, you can read the ACAS guidance to understand how complaints should be handled.

The advantage of raising the problem informally is that it may be possible to come to an understanding with the person making the comments without things escalating into a big dispute. For example, your boss may not have realised their jokes were offensive and might want to apologise and agree not to make similar jokes in future. If you do try the informal route, you should keep a written record of what you say and what is said to you, and you may find it helpful to have the support of a colleague at any meetings. 

The advantage of raising a formal complaint is that there is a procedure (either the Company’s or ACAS’s), which provides a formal step-by step process for reaching a resolution. However, the major drawback is that once a complaint has been put in writing, those involved are very likely to feel under attack and become defensive. The company will also have to consider its legal position. Generally speaking, these factors put a counterproductive strain on the process and make it harder to reach a resolution.

It is quite understandable if you are reluctant to complain because of the fear of losing your job or other reprisals. The law is designed to offer some comfort to individuals in this position and deter employers from reacting negatively to complaints. Under the Equality Act 2010 it is unlawful to subject an individual to ‘detrimental treatment’ because they have complained about discrimination, or indeed, done anything in connection with rights under the Equality Act 2010. Detrimental treatment of that kind is called discriminatory victimisation. So, if after raising a complaint you find yourself being treated poorly, such as being ignored or bullied, or overlooked for promotion, it may be unlawful victimisation.

Challenging unacceptable behaviour at work can be very stressful and navigating internal procedures can be confusing. If you are going through something like this you may find it helpful to have the support and guidance of a solicitor.