united-kingdom employment
Whistle-blower protection - evidence obtained illegally?
<p>If a company is surreptitiously operating a discriminatory hiring policy, and evidence from the HR system is leaked to prove it (i.e. records of the ethnic origin and gender of those promoted and hired). Would a whistle-blower have any legal protection against retaliation if they had no legitimate access to the HR system - or in other words they got in using a password they weren't supposed to know?</p>
<p>On a related issue how big does the difference between ethnic makeup of the hiring pool and the ethic makeup of those promoted need to be to prove discrimination? Example, lets say 20% of the company workforce has a particular ethnicity, and lets imagine that only one of the 50 people promoted in a year (only 2%) is from that ethnic group, would that constitute discrimination?  or more importantly, would that constitute <em>evidence</em> of discrimination?</p>
<p>UPDATE - what do I mean by retaliation? - Lets say the whistle-blower works in IT, and lets say the HR system database uses the same default passwords widely known to most of the IT staff. A company that objects to having the whistle blown on it may decide that using this password to access the HR system counts as 'hacking' and use this to fire/prosecute the whistle-blower.</p>
<p>I guess what I'm asking is 'can a whistle-blower do something illegal to expose something illegal?'. Discrimination is illegal, but so is hacking the HR system to get the evidence.</p>

<p><strong>Q2:  would that constitute discrimination? or more importantly, would that constitute <em>evidence</em> of discrimination?</strong></p>
<p>No, not by itself. There are many companies and public bodies that have a disproportionate balance across the whole spectrum of protected characteristics but they act fairly and equitably.</p>
<p>Although statistics may go towards supporting such an allegation, there must be evidence to show (for example) that the HR policies, recruitment and promotion procedures, and/or company officials are discriminatory and contrary to the <a href="https://www.legislation.gov.uk/ukpga/2010/15/part/2/chapter/2/crossheading/discrimination?timeline=false" rel="nofollow noreferrer">Equality Act 2010</a>:</p>
<blockquote>
<p><strong>s.13 Direct discrimination</strong></p>
<p>(1) A person (A) discriminates against another (B) if, because of a
protected characteristic, A treats B less favourably than A treats or
would treat others.</p>
<p>[...]</p>
<p>(5) If the protected characteristic is race, less favourable treatment
includes segregating B from others.</p>
<p>[...]</p>
<p><strong>s.19 Indirect discrimination</strong></p>
<p>(1) A person (A) discriminates against another (B) if A applies to B a
provision, criterion or practice which is discriminatory in relation
to a relevant protected characteristic of B's.</p>
<p>(2) For the purposes of subsection (1), a provision, criterion or
practice is discriminatory in relation to a relevant protected
characteristic of B's if—</p>
<p>(a) A applies, or would apply, it to persons with whom B does not
share the characteristic,</p>
<p>(b) it puts, or would put, persons with whom B shares the
characteristic at a particular disadvantage when compared with persons
with whom B does not share it,</p>
<p>(c) it puts, or would put, B at that disadvantage, and</p>
<p>(d) A cannot show it to be a proportionate means of achieving a
legitimate aim.</p>
<p>(3) The relevant protected characteristics are— age; disability;
gender reassignment; marriage and civil partnership; race; religion or
belief; sex; sexual orientation.</p>
</blockquote>
