Have you been unfairly accused of discrimination at work?

How you can respond

This firm helps people to respond to unfair workplace discrimination allegations.

The idea that a discrimination complaint could be unfair or unjust is a difficult topic for many people.

The thought that someone could make such a serious allegation – and yet be wrong – makes people uncomfortable. For this reason, anybody facing a discrimination claim faces a real disadvantage. Yet, it can be overcome.

Taking the time to understand your options and how to respond can be a good first step. However, as with any legal issue, there is no substitute for getting professional legal advice as early as possible. Without advice, people can sell themselves short by not doing all that can to contest an unfair allegation.

Why unfair allegations may arise

In Australia, as elsewhere, discrimination in the workplace does occur. However, misconceived or unfair claims are also made. It is not always a case of the accuser lying about events. People can wrongly label something as “unlawful discrimination”. In some cases, discrimination is not unlawful. It is the reason to assess each claim on its own merits.

Employers and managers undertake many tasks that affect the rights or interests of workers who may feel, rightly or wrongly, they are being unfairly targeted. It is common for employers, executives, and managers to face allegations against that background.

There are many legitimate, albeit controversial, actions executives and managers must take, including:

• comment and advice, including negative feedback
• performance appraisals, including counselling
• performance management
• changes to working arrangements
• investigating complaints
• instigating disciplinary processes

Unless there is a link to one of the protected characteristics set out in discrimination laws, such acts will not be unlawful. In some cases, a person may very genuinely believe they are being discriminated against, yet is simply wrong about their concern. However, malicious complaints can occur. For example, it is possible for employees to try to cover poor performance by unfairly claiming a manager has discriminated against them.

There is no ‘template’ response to discrimination complaints

There are many different approaches a person may take when faced with a discrimination complaint. The reasons for this are obvious. Not all allegations are the same and individual circumstances need consideration.

Discrimination in the workplace can take different forms. A study by the Diversity Council of Australia on discrimination and harassment in the workplace showed the experience of several groups. The highest rates of discrimination were experienced by people who are Aboriginal and Torres Strait Islander, people with non-Christian religious affiliations, people with disabilities, people who identify as LGBTIQ+, and young workers (under 30):

The varied ways a discrimination complaint may arise means there is no ‘one-size-fits-all’ approach to responding.

Responding to an unlawful discrimination claim requires proper analysis of all the relevant facts, an understanding of the workplace environment, and an awareness of the applicable laws and policies.

If you need to respond to a discrimination allegation, there are six steps that can help you to do so effectively:

1. Review relevant laws and policies
2. Gather supporting evidence
3. Identify what you accept or reject
4. Consider your rights and options
5. Get advice from a lawyer
6. Respond calmly and purposefully

1. Review relevant laws and policies

If you are responding to a discrimination complaint arising from the workplace, it is important to review the applicable laws and policies. It is through such frameworks that the issues should get decided. Law, policies, and procedures can also allow you to understand what may be fair or appropriate in terms of investigations and disciplinary action.

In Australia, there can be real consequences if an employer fails to afford an employee procedural fairness when dealing with a discrimination complaint. It compromises the ability of someone accused of discrimination to respond. Unfair processes can see disciplinary decisions reversed, and compensation ordered.

Generally, a person facing a discrimination allegation will need adequate details of the allegation. In a workplace setting, an employer must also provide information or evidence relevant to the allegation that is sufficient to enable an opportunity to respond. Without this, a respondent to an allegation may not be in a position to fairly respond.

The failure to understand relevant laws and policies that apply can see people sell themselves short. They may not appreciate their options to challenge an unfair process. Getting advice from an employment lawyer can help to ensure procedural flaws in a process get the attention they deserve.

2. Gather supporting evidence

If relevant evidence is not uncovered, an unjust result may prevail.

If you face an unlawful discrimination accusation, you may encounter some hurdles in gathering evidence. For example, you may have been stood down from work while the issue is investigated. Also, it is common for employers to direct employees to keep workplace investigations and disciplinary processes confidential. So, it may not be so simple to speak to your colleagues. As such, gathering the available evidence can seem easier in theory than it is in practice.

To gather relevant evidence, it is necessary to know what rights and options you may have to get it. Moreover, it is critical to know what obligations exist for employers to consider it.

Evidence relevant to a response may go beyond simply addressing the allegation. It can also relate to evidence by experts, such as doctors, psychologists, or counsellors. Understanding how certain evidence may be relevant is not always obvious. The legal issues associated with certain forms of evidence can also be complex.

Employers are not expected to have the skills of police or lawyers in dealing with evidence. That said, if you understand the reasonable expectations they must meet, it can help you frame your response to a discrimination allegation.

3. Identify what you accept or reject

Identifying what you accept or reject sounds simple. It requires methodically working to identify the real issues in dispute.

Narrowing the points in dispute can be a source of strength. Yet, it may also be necessary to raise new issues. Sometimes, there are things that may have contributed to the issues, or provide necessary context to alleged events. Such issues may be personal to the employee, or an external factor that needs consideration. With respect to discrimination complaints, context may be the difference between unlawful discrimination and justifiable action.

To accept or reject issues, it is crucial to understand what information, witnesses, or evidence exists or is relevant. If you are an employer, executive, or employee facing a discrimination allegation, this ensures you can see the basis for the allegation. For instance, it may expose that incomplete or inaccurate information has been supplied to support the allegation.

Identifying what you accept or reject is an essential step when responding to discrimination claims. Balancing strong challenges with reasonable concessions can be difficult. Decisions of this nature are best made against the applicable legal principles.

4. Consider your rights and options

You may have many choices to make when faced with a discrimination complaint. Yet, it is likely an unfamiliar situation, may involve short timeframes, and is often stressful. In such circumstances, people do not always fully consider their rights and options. 

In some cases, a discrimination allegation may make it hard for an executive or employee to see how they could possibly return to their workplace. While they may wish to be vindicated and their name cleared, they may also feel uncertainty about the prospect of returning to work. Successfully defending the allegation only to return to a potentially hostile environment may feel like a Pyrrhic victory. In such circumstances, hiring a lawyer to engage in ‘without prejudice’ negotiations may open a different path. It can allow an employee to reach a confidential settlement with their employer, allowing them to move forward in a different direction and without some risks of a contested process.

It prompts this question: ‘Why would an employer negotiate with an employee facing a discrimination allegation? The reasons employers may negotiate are not always obvious. The legal, financial, and reputational risks employers can face are complex. Reducing conflict through negotiation can have benefits for all concerned.

A confidential settlement can allow an executive or employee to resolve their issues quickly and help to protect their reputation. Avoiding lengthy disputes can allow people to move forward faster and more securely. However, confidential settlements will not be possible or appropriate in all cases.

Considering your rights and options is essential before responding to a discrimination complaint. It can focus attention on what may be the ideal outcome in the situation, and what is actually achievable.

5. Get advice from a lawyer

Getting advice from a lawyer can have a number of benefits. It can help to identify the potential risks and benefits of different options. Moreover, it can help people to respond strategically to the allegation.

Dismissal from a workplace can have far-reaching consequences (Why your decisions matter). It can impact your reputation, livelihood, and financial security. For this reason, it is prudent for people to get legal advice before settling on how to respond to a discrimination allegation.

Tailoring every response to the specific circumstances of the case is always necessary. There is no ‘one size fits all’ approach to responding to an accusation relating to unlawful discrimination. An experienced lawyer can draw on their knowledge of the law and past cases that may have involved similar issues.

If you face a discrimination allegation, there is no substitute for getting advice from a lawyer. It can help to translate your options into an effective strategy. It can make a real difference to the outcome.

6. Respond calmly and purposefully

It is necessary to respond calmly and purposefully to any unlawful discrimination allegation you face. This means taking account of the issues at stake and the dangers of any missteps. For an individual, what may be at stake may be more than their immediate job, it may affect their broader career and reputation.

Do you need to fully contest the allegations you face? Or do you think the response requires more nuance, and perhaps some careful concessions? Or, is negotiating a confidential settlement in your best interests? A calm and purposeful response will look different to different people and this firm can help you to navigate the issues.

People can underestimate how much work it takes to answer an accusation relating to unlawful discrimination. The allegations underlying a complaint may refer to multiple incidents, each of which may carry disputed context or involve multiple sources of information. Understanding what is needed in order to properly defend yourself can be difficult. This is particularly so if you feel the situation is unfair or unreasonable.

Even with a perfectly rational response, an unfair decision may result. It may be disappointing, even devastating. Getting appropriate legal support can make a real difference. Other supports include employee assistance programs (EAP), doctors, and counsellors. With a proper strategy, it is possible to plan for different contingencies, defend your rights, and advance your interests. This firm helps to defend executives and employees who face an unfair situation at work and wish to act against it.

What this firm does

Anderson Legal defends people facing unfair discrimination allegations.

Anderson Legal helps businesses and individuals to respond to unfair discrimination allegations. As such, this law firm can help you to contest unfair allegations and processes, defend your legal rights, and advance your interests.

This law firm helps businesses and individuals across Australia by:

• providing advice and guidance;
• giving guidance during workplace investigations;
• negotiating confidential settlements; and,
• litigating disputes in courts and tribunals.

If you are considering whether or not you should get help in responding to an unlawful discrimination allegation, particularly one you feel is unfair, it is critical to understand what this firm does and how it may benefit you.

Your response to a discrimination complaint is your opportunity to explain your side of the story. However, it can also be an opportunity to negotiate a resolution that is acceptable to you and, which may, also repair strained relationships.

In assisting people to contest discrimination complaints within the workplace environment, experience shows employers and managers (even with the benefit of advisers) quite often fail to afford procedural fairness, comply with their own policies and procedures, or take into account relevant information.

The question is: How seriously are such flaws treated by decision-makers? The answer may depend, to some degree, on the authority of the person raising the issue. For this reason, having the support and authority of a lawyer on your side can be critical.

The ‘principle of authority’ describes the tendency of people to agree or comply with those seen as having authority on a subject. Numerous studies have shown the impact of this ‘principle of authority’ on decision-makers. In the Harvard Business Review, Dr Robert Cialdini described the essence of the ‘principle of authority’ in this way:

Two thousand years ago, the Roman poet Virgil offered this simple counsel to those seeking to choose correctly: “Believe an expert.” That may or may not be good advice, but as a description of what people actually do, it can’t be beaten.

It follows that getting a lawyer can assist you to have your voice heard. However, the actual value of a lawyer should run deeper. While knowing the law is fundamental for a lawyer, so is their expertise as an advocate.

This firm helps people to better understand their options and provides advice on how the scales can be tipped back in their favour. At every point, you will see its advocacy efforts deployed in your interests.

Where people can go wrong

People can be mistaken about when a lawyer may prove most useful to them.

It is not uncommon to feel uncertainty, doubt, and stress upon being notified you have been accused of discriminating against someone. In fact, it is normal, particularly for people who feel they are being wronged by the allegation or claim.

It is also not uncommon to see people making mistakes about how to respond and the scope of the task. People can view the correctness of their position as self-evident. It can stop them from reflecting on their options in responding. It can see people underestimate how much work there is in formulating a compelling response, and just how serious the consequences may be if the findings do not fall in their favour.

Some people think they will engage a lawyer only “if the worst happens”. That is, they see a lawyer as someone who ‘reacts’, rather than ‘prevents’. The truth is, it often becomes harder, not easier, to change the outcome the farther things are along the road. For that reason, people facing workplace challenges are always best advised to get legal advice as soon as possible. As it is with medicine, prevention is better than a cure.

Hiring a lawyer to help you can be easier than you think, and the timing can be important. How you respond to a discrimination claim can have a range of implications (Why your decisions matter). In the workplace context, an executive or employee dismissed for discrimination is unlikely to be reinstated if they challenge the termination of their employment. Outcomes from conciliations in the Fair Work Commission show this in raw detail:

Whether through conciliation or contested processes, experience shows reinstatement is relatively rare. Depending on the reasons for the dismissal, termination of employment can also make it harder to find a new job. Quite often, the earlier you engage a lawyer to help you when facing a discrimination allegation at work, the more options you will have available.

Why your decisions matter

Unfair allegations relating to discrimination can have far-reaching consequences.

There are a number of potential legal consequences that can follow from a discrimination allegation at work, including:

• Workplace disciplinary processes by employers
• Professional disciplinary action by regulators
• Adverse action claims in the Fair Work Commission
• Civil claims brought by those impacted by discrimination
• Criminal charges under work health and safety laws

Many people do not stop to consider how a discrimination allegation may attract the attention of regulators, tribunals, and courts. It highlights why it is prudent for people facing issues of this nature to get legal advice as early as possible.

Employers have certain responsibilities in responding to discrimination allegations arising within a workplace. In not understanding the advice employers may receive about their own obligations, people facing an allegation can misinterpret the steps an employer takes to respond to an accusation. These issues can make it difficult to face accusations alone and without the benefit of advice and support.

If you are subject to a workplace investigation or disciplinary process and disagree with the outcome, you may seek to use your responses from those processes as part of a legal claim. For example, an unfair dismissal claim or general protections claim. This can be a double-edged sword. While a well-argued response may assist you, the opposite may be true where your response was inadequate. In such cases, it may be the employer who wishes to rely on your response.

Responding to a discrimination accusation requires proper analysis of all the relevant facts, an understanding of the workplace environment, and an awareness of the applicable laws and policies. No matter where you are in Australia, Anderson Legal can help you to properly respond to a discrimination allegation you face in your workplace.

About Author: Andrew Anderson

Andrew Anderson has significant experience assisting people seeking help in responding to allegations relating to discrimination, bullying, and harassment. He assists employers, executives, and employees across Australia by:

• providing advice and guidance;
• giving guidance during workplace investigations;
• negotiating confidential settlements; and,
• litigating disputes in courts and tribunals.