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All rewards and no repercussions | Is favouritism at work illegal?
As humans, we will naturally warm to some people more than others. However, in the workplace, preferential treatment can create real issues.
It’s quite common for employers or managers to have a better working relationship with certain members of their team. It might be that that their way of working is more akin to yours, that you’ve known them for longer, or simply that your personalities mesh better.
In fact, if pushed, most people would probably be able to identify the ‘favourites’ in their team, and in a lot of cases, this is simply an accepted fact of working life.
However, when you’re in a position of authority, it’s important to be mindful that the decisions you make are fair, and that you can justify your actions on objective grounds, as managing through gut decisions can create real animosity within your team and, in some circumstances, leave the door open for disgruntled employees to take legal action.
What is workplace favouritism?
Favouritism in the workplace occurs when an individual, usually a manager, treats one employee more favourably than the others for reasons unrelated to performance. Broadly speaking, there are two types of favouritism that employers and managers are often guilty of:
- Giving one employee perks and privileges that others don’t get; and/or
- Letting a particular employee get away with things that others wouldn’t get away with.
Whether such treatment is deliberate or not, failing to take an even-handed approach to employee matters has the potential to destabilise your team by creating hostility and setting dangerous precedents about acceptable behaviour.
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Promotions, perks and other priviliges
In truth, it can be difficult to disguise the fact that you prefer one individual to another. Often, the way managers interact with different employees day to day can speak volumes about who is the favourite; perhaps they are more flexible with them when they need time off, allow them to pick their own shifts, select them to help you with tasks, or simply laugh at their jokes more. In many cases, this isn’t a conscious choice, but these small acts of favouritism will almost certainly be picked up by other members of staff, and it’s important to be mindful of how this might come across.
But is this sort of unequal treatment illegal? The answer is, in some cases. The law doesn’t prohibit poor management practices or general unfairness, and favouring one employee over another based on their personality, work ethic, or even connection to you (if they are a relative or a friend of a friend) isn’t illegal. However, favouritism may be illegal if it takes the form of discrimination, harassment, or other mistreatment that violates the law.
Importantly, if preferential treatment is motivated by a protected characteristic, such as age, race or sex, then there is scope for aggrieved employees to bring a claim. For example, providing training opportunities for a 20-something employee and not for an employee in their fifties could constitute age discrimination. Similarly, promoting only people of a certain race, regardless of their ability, is likely to invite claims for race discrimination.
Not illegal, but not wise either
Whether acts of favouritism are illegal (related to a protected characteristic) or not, it is nonetheless a poor management move.
Preferential treatment towards certain members of staff, from allowing them to pick their own shifts to openly praising them in front of others, is a sure-fire way to create resentment.
Over time, realising that the favoured employee will continue to be rewarded regardless of what they do will cause other employees to stop trying, become disengaged, and even quit. All of this means that morale will take a hit, working relationships will suffer, and productivity will nose dive – and legal issues aside, that’s not good for business.
The dangers of letting certain employees' behaviour slide
If an employee violates any of your rules, whether through poor conduct, persistent lateness, or simply not showing up, it’s important to enforce your policies in a fair and consistent way. Consistently turning a blind eye to one employee’s misdemeanours while taking a heavy-handed approach towards another employee for the same offence is never a good idea, as it may cause mutiny within your team, undermine managers’ authority, and leave you exposed to legal risk.
Claims arising from unequal treatment are reasonably common. Failure to apply your policies fairly and consistently can result in unfair dismissal claim, and while each case will turn on its facts (for example, there may be mitigating factors that mean the circumstances in question aren’t entirely comparable), it’s never wise to run that risk.
Again, there is a fine line between favouritism and discrimination, and if the person bringing a claim possesses a protected characteristic, the burden of proof may well fall on you to demonstrate that this played no part in your decision to treat them differently, and this can sometimes be difficult to evidence.
Even if you are successful in defending a claim, with the average case demanding, on average, 20 hours of employers’ time (or 60 to 80 hours when attendance at Tribunal as a witness is factored in), the costs of favouritism can be significant.
A slippery slope
Legal risk aside, treating one member of staff as if they can do no wrong will strongly undermine managers’ abilities to enforce rules.
After all, if you or one of your managers decides not to reprimand a favoured employee for failing to turn up to a shift without reasonable explanation, then your hands will be tied if others choose to follow suit.
This will limit other managers’ options when it comes to managing them team effectively, which may prompt them to submit a grievance, or worse, feel they have no option but to resign as they have no authority to carry out their role properly. With this comes the potential for constructive dismissal claims.
Practical ways to combat favouritism in your workplace
Perceived unfair treatment or favouritism can lead to a multitude of problems in the workplace, from bad work dynamics to formal grievances, resignations or even Employment Tribunal claims. With this in mind, it’s important that employers take proactive steps to avoid these issues:
Alert managers to how their actions might be perceived.
Managers may be genuinely unaware that they are treating staff unequally or that this has any negative effect, and in many cases, simply bringing this to their attention can be enough to nip the issue in the bud. If you notice that a manager is displaying favouritism towards a particular employee, speak to them and explain the importance of applying your procedures consistently. Remember, there may be a legitimate reason why they dealt with employees differently, such as choosing not to reprimand an employee who was late for genuine health reasons.
Have set policies and procedures and train managers in how to apply them.
When it comes to managing poor conduct or performance, this will help to keep everyone on the same page and prevent different sanctions for different offences. Similarly, with promotions and other rewards, develop set metrics for performance so that employees are judged by the same standards, and keep a record of your decision making (including evidence of any appraisals or examples of good work).
Discourage friendships between levels.
Just as many workplaces prohibit managers from dating direct reports, you may wish to consider discouraging managers from socialising with members of their team outside of work, as this can give rise to favouritism and make them reluctant to discipline certain members of staff when required.
Hold occasional skip-level meetings.
An employee who has frustrations with a manager’s conduct may be unwilling to approach their manager directly, especially if it is to do with favouritism as they may fear this will put them further down the pecking order. By providing opportunities to speak to someone more senior, the employee may be more likely to voice their concerns, giving you chance to address the issue and reducing the likelihood of the employee resigning out of frustration.
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