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DISCRIMINATION LAW

As an employer, you must comply with anti-discrimination duties and ensure equality of opportunities and treatment in the workplace.

Discrimination Law was overhauled with the introduction of the Equality Act 2010. This Act effectively brought together all previous legislation under one umbrella, but the main elements of the law remain the same.

Fairness in the workplace is a vital part of a successful business or public body. It is supported by the law and also makes good business sense in running and developing an organisation.

The aim of the Equality Act is to:

  • Ensure equality of opportunity at work.
  • Protect employees’ dignity.
  • Ensure that complaints can be raised without fear of reprisal.

Organisations should have policies in place so these outcomes happen and, just as importantly, to prevent discrimination.

What areas of working life are covered?

Discrimination law covers all areas of employment, including:

  • Job adverts and the recruitment process.
  • Conduct during employment.
  • Work social events.
  • Job references.
Under the Act, it is unlawful to discriminate against people at work because of nine areas termed in the legislation as ‘protected characteristics’ where businesses must not discriminate against employees on the basis of:

 

  • Sex (for example, a business must not offer a male candidate a more attractive health care package than a female candidate for the same post).
  • Gender reassignment.
  • Being pregnant or on maternity leave (for example, a business should not delay the promotion of a female employee because she is on maternity leave).
  • Being married or in a civil partnership.
  • Race (including ethnic or national origin, nationality and colour). For example, it could be unlawful to refuse to promote an employee on the basis that English is not their first language.
  • Disability (for example, a business cannot dismiss a disabled employee simply for taking substantial periods of sick leave, if they are off work because of their disability).
  • Sexual orientation (for example, if a business invites employees’ partners to a social function, the invitation should be extended to same-sex partners).
  • Religion or belief (for example, it may be unlawful to prohibit headwear at work, as this may discriminate against Sikhs who wear turbans for religious reasons).
  • Age (for example, choosing not to interview a candidate because their application suggests they are nearing retirement age is discriminatory).
    As an employer, you will be liable for your actions and behaviour, and may also be accountable for the discriminatory conduct of an employee in the course of their employment, irrespective of whether such actions were carried out with your knowledge or approval as their employer.

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TYPES OF WORKPLACE DISCRIMINATION

Having an awareness of the types of workplace discrimination is an important starting point to understanding your duties and complying with your responsibilities as an employer:

  • Direct Discrimination: this occurs when someone is treated less favourably because of an actual or perceived protected characteristic, for example their gender or age, or by virtue of their association with a protected characteristic, for example because of their partner’s religion or disability.
  • Indirect Discrimination: a policy, practice or decision may have the effect of disadvantaging a particular group of people that share a protected characteristic, irrespective of any good intentions underpinning the practice or decision. Unless the action can be shown to be proportionate to the means of achieving a legitimate aim, and appropriate and necessary when balanced against the disadvantage suffered, it will be deemed to amount to indirect discrimination.
  • Harassment: Harassment is unwanted conduct related to a protected characteristic that has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive working environment for them.
  • Victimisation: a person may be victimised for undertaking or participating in a protected act, for example, making a claim or complaint relating to discrimination under the Equality Act, or giving evidence in support of another person’s complaint or claim. Victimisation occurs when a person is subjected to detrimental treatment or a disadvantage as a result of undertaking a protected act.

If an employee believes they have been discriminated against, they will usually connect this to one or more of the nine protected characteristics listed above. But the way in which they have been allegedly discriminated against will determine which type or types of discrimination apply within their protected characteristic.

WHAT ARE THE MAIN DEFENCES TO A DISCRIMINATION CLAIM?

Justification

In limited circumstances, an employee’s treatment may not be discriminatory, if it can be objectively justified. For example, a requirement to have excellent written English skills may indirectly discriminate against non-British job applicants, unless the business can show that the aims of the job in question cannot reasonably be met without that requirement.

Occupational requirements

It may be lawful to discriminate if having a particular characteristic is an occupational requirement. For example, a Catholic school may require its religious education teacher to be a Catholic.

The law requires the business to discriminate

There are some instances in which a business may be required by law to do something discriminatory. For example, immigration legislation may require the business to refuse to employ a non-EU job applicant on the grounds of their nationality, even if they are the best qualified person for the job.

Protection from harassment.

Harassment is any unwanted conduct that has the purpose or effect of:

  • violating a person’s dignity; or
  • creating a hostile, degrading, humiliating or offensive environment.

Protection from victimisation

A business must not discipline an employee who either:

  • Brings a discrimination claim against the business.
  • Gives evidence on behalf of a colleague in an employment tribunal.

It is discriminatory if it is related to any of the characteristics listed above. For example, it is important to make sure more junior staff are not belittled or humiliated due to their lack of experience.

WHAT ARE THE PENALTIES FOR FAILING TO COMPLY WITH DISCRIMINATION LAWS?

  1. High compensation payments
    There is no limit on the amount of compensation that can be awarded.
  2. Expensive litigation
    Litigation can involve significant management time and legal costs, which are not usually recoverable.
  3. Damaging publicity
    Allegations of discrimination or harassment are likely to create bad publicity for a business. It is better to avoid giving rise to a claim, than to manage a crisis after a claim has been made.
  4. Negative impact on staff morale
    Discrimination and harassment issues can be highly emotive and the process may have a negative impact on staff morale.

PRACTICAL STEPS TO HELP AVOID BREACHING DISCRIMINATION LAW

  • Provide staff with employment handbooks (including policies on equal opportunities and harassment) setting out what constitutes acceptable behaviour and what does not.
  • Provide training on equal opportunities and harassment. This may help managers:
    – avoid inappropriate questions at interviews; and
    – recognise and deal with harassment at an early stage.
  • Set up clear procedures for staff to:
    – raise concerns and complaints, and
    – deal with complaints.
  • Ensure discriminatory behaviour by staff is not tolerated and is dealt with through proper disciplinary measures.
  • Review employment contracts, policies and employee share schemes to ensure they comply with the law.
  • Make reasonable adjustments where this will alleviate difficulties suffered by a disabled employee in the workplace (for example, by installing wheelchair ramps).
  • Where possible, accommodate workers’ different cultures and religious beliefs (for example, requests for time off to pray should be allowed, unless a refusal can be justified).
  • Try to accommodate requests for family-friendly hours by employees with childcare or other family commitments, unless a refusal can be justified.
  • Undertake equal opportunities monitoring, but do not use the forms as part of recruitment or other decision making.

EMPLOYERS NEED TO KNOW THAT:

Employees who believe they have been subjected to discrimination, or who believe they have witnessed discrimination in the workplace, should be able to feel confident in raising the matter with their employer and assured it will be taken seriously.

The Equality Act makes certain exemptions and exceptions where in some limited situations treating employees and job applicants less favourably can be lawful. For example, in certain and rare circumstances, it may be lawful for an employer to specify that applicants for a job must have a particular protected characteristic user the Act.

Both employers and their employees can be held responsible and liable for their actions where they discriminate.

To effectively stay within the law, promote equality and prevent discrimination, and employees should have a policy in place so all employees know what is acceptable and expected of them as individuals and as part of the organisation.

There are different options including policy changes, disciplinary procedures and mediation for handling concerns or complaints about discrimination. An employer should be clear how it will handle such a matter. However, if the complaint is lodged by the employee as a grievance, the employer must follow certain minimum procedures set out in the Acas Discipline and grievance – Acas Code of Practice

WHAT WE CAN DO FOR YOU

We provide pragmatic and holistic advice on all aspects of Discrimination Law in the context of employment, from recruitment and HR matters, to the design and introduction of employment policies and procedures compliant with Equality Law, workplace measures and practices intended to prevent discrimination claims, and equal opportunities and anti-discrimination training.

We offer tailored advice on the impact of new and existing anti-discrimination laws and identify what this means for your business in practice.

If a discrimination claim does arise, we will represent your best interests by providing a robust defence, and advise you of the likelihood of success, the potential for wasted management time or financial penalties that may be incurred as a result of defending a claim.

We believe that dialogue is a vital aspect underpinning effective management and employee-employer relationships. As such, we will pursue alternative dispute resolution, including mediation and negotiation, before seeking to defend your position if a claim is brought before an employment tribunal.

We can advise you on equalities legislation and the steps employers should consider taking to mitigate or avoid potential discrimination claims.

PENALTIES FOR A SUCCESSFUL DISCRIMINATORY CLAIM

Unlike unfair dismissal claims, discrimination, harassment and victimisation claims are not subject to a statutory cap.

It is, therefore, essential to seek expert Employment Law advice sooner rather than later. We believe that the best defence against potential discrimination claims is establishing fair and compliant working practices and procedures, creating a harmonious and unbiased workplace environment.

DO YOU NEED HELP WITH A DISCRIMINATION CASE?

Then speak to us today to discuss how we can help your organisation