Demonstrating discrimination in appraisal and performance management

[ch 13: pages 99-100]

Every case is different, but here are some factors that could help support a member’s case that they have suffered direct discrimination in the context of performance management:

• actual comparator(s) — workers on the same grade without the protected characteristic who have not been given a negative performance ranking, or who have been awarded a higher performance ranking. This is the best evidence. Comparators should be as similar as possible;

• evidence that the worker’s performance met the standards set by the performance management policy;

• changes in an employer’s behaviour, for example, invoking formal performance management after an employee announces her pregnancy;

• the employer’s explanation for the difference — both written and face-to-face. Are they consistent and credible?

• lack of clear rules and procedures, vague or subjective criteria, too much management discretion, or no peer review process to check that outcomes are consistent and fair;

• failure to follow the EHRC Code;

• discriminatory language or behaviour by managers implementing the performance management process; and

• statistical evidence of poor outcomes by members sharing protected characteristics.