Discrimination claims made under the Equality Act 2010 (EQA 2010) can be expensive, as the compensation is uncapped if an employee’s claim is successful. Expanding on our page relating to dealing with discriminations in the workplace and how to best deal with this, we have a few pointers below, to help you promote diversity and avoid liability for workplace discrimination claims.
What is discrimination in the workplace
In an employment law context, discrimination relates to:
- Direct discrimination (section 13 EQA 2010)
- Indirect discrimination (section 19 EQA 2010)
- Harassment (section 26 EQA 2010)
- Victimisation (section 27 EQA 2010)
- Instructing, causing, inducing and helping discrimination (sections 111 and 112 EQA 2010)
So, in short, discrimination is treating a person or group of people differently because of a certain characteristic they possess, or due to the fact they are associated with someone who possesses a particular characteristic.
The nine protected characteristics are:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion and belief
- Sex and sexual orientation
If you need more guidance as to what the different offences are, or what behaviour may fall into these categories, please seek professional advice.
Once you are clear on the type of language and behaviour you want to avoid in the workplace, you will be looking for strategies on how to achieve this.
How to Avoid Workplace Discrimination
Create an anti-discrimination policy
Your business should have a clear and robust anti-discrimination policy and procedures. If you do not have these already, our employment solicitors can discuss your specific requirements and draft these for you. If you have discrimination policies and procedures in place but you want to see if these require updating, please check with our team of specialist solicitors.
Revise existing policies and procedures
You need to ensure existing policies and procedures in your business are not indirectly discriminatory or are not applied in an indirectly discriminatory way. Examples of this includes:
- Sickness, absence, and attendance management procedures must not indirectly discriminate against disabled or pregnant employees, or trans employees undergoing gender confirmation treatment.
- Annual leave, working hours, and rest break policies are overly restrictive, they can potentially indirectly discriminate if individuals need to observe religious festivals. Even though the operation of the business can be a legitimate aim that could potentially justify indirect discrimination, you need to consider the needs of all employees when assessing whether a policy is a proportionate means of achieving that legitimate aim.
- Full-time hours may indirectly discriminate against women who are more likely to have childcare responsibilities; or disabled people with certain conditions and could also be a failure to make reasonable adjustments.
- All training and promotion opportunities should be carried out transparently and reasonable adjustments made where required and appraisals should be objective and clear to avoid being potentially discriminatory.
- Dress codes and language requirements can also be a point of contention and it is recommended that if you are going to introduce policies relating to these topics, which are a proportionate means of achieving a legitimate aim, such as health and safety, that you consult staff first to see if some exemptions should be made. Our article on dress code and our article on language requirements may help further with these topics, but if in doubt, do contact us for more specific advice.
It is a worthwhile investment getting these policies correctly drafted and implemented, as precisely drafted, comprehensive policies should reduce your business’ chances of having to defend expensive discrimination claims in an Employment Tribunal a few months down the line.
Make your policies and procedures accessible
It is critical that these are accessible to all staff. Your staff will need to know that these policies exist, where to find them, and should be trained on how these apply. This is particularly important if an employee is a manager or part of the HR department.
Have a HR point of contact
It is also recommended that staff are provided with a point of contact so that they can ask any questions about company policies and their application and be clear in their understanding of their contents. You can remind staff about equality with regular training and ensure that reminders are visible on the company website, staff noticeboards, and in the communications sent by management.
Provide discrimination training
As briefly discussed above, other, wider anti-discrimination training such as unconscious bias training, might also be helpful to your business. It is beneficial if this forms part of the induction training for staff from day one. That way, staff know that promoting diversity is key to your business, that discrimination of any kind is not tolerated, and so that they are clear on what to do if this is encountered. As well as just training on how to use your company’s procedures, with wider training and knowledge, staff will have a greater understanding and appreciation of what language and behaviour is discriminatory, which in turn should mean less instances of discriminatory conduct and that your policies are required less frequently.
Review your business culture
Whilst having the right processes in place and training staff on these can help to guide your personnel on behaviour, the best way to ensure discrimination is not taking place in the workplace is to encourage and promote a culture which is diverse and where there is open communication. Employees should feel secure in approaching managers with problems and be able to trust that this will remain confidential and that they will not suffer victimisation as a result of reporting their concerns. This is not just a sound bite, if you have a diverse business, you are likely to have more perspective, talent, and experience to draw from, which can be highly valuable.
By your business aiming to be as safe and consultative as it can be for all staff, this will include those who have a protected characteristic under the Equality Act 2010 who may be able to bring a discrimination claim. This will in any event likely create a better place to work and so encourage employee retention, attract the best candidates when you recruit, increase productivity, and enhance your reputation, which will also hopefully lead to more business.
To help avoid disputes and conflicts, which could lead to complaints relating to discrimination, it is critical that leadership is shown from the top. You will need to inspire the behaviours of your staff with a management team who treat all workers with dignity and respect and ensure that workers reporting to management treat their manager and each other with dignity and respect. If this forms the basis of relationships in the workplace, instances of misunderstanding, and behaviour that may lead to discriminatory conduct is less likely.
Carry out a risk assessment
You might want to consider carrying out a risk assessment and look at the different risk factors for your specific business where discrimination is concerned. The risk factors for harassment might include:
- Power imbalances
- Job insecurity
- Lone working
- Alcohol or certain foods in the workplace
- Events that raise tensions locally or nationally
- Lack of diversity in the workforce or at certain levels of seniority in the workforce
Equality monitoring
At the beginning of employment, you may want to consider equality monitoring, and throughout employment you could monitor different protected characteristics and check that none of your staff are being placed at a disadvantage in terms of recruitment, pay, training, promotion or otherwise. It is also recommended that you put safeguards in place and encourage staff to speak up in respect of any third party harassment, in order that you can protect your business from liability for the actions of a third party and ensure that you are taking all reasonable steps to protect your staff. Conversely, you will need to monitor your staff and ensure they are not discriminating against or harassing a third party.
Review your grievance policy
It may be that on occasion there will be accusations of unlawful discrimination in your workplace, and you will need to be prepared to look at the facts of the case in detail and investigate the matter promptly and thoroughly. Your processes will assist here and should be carefully followed and everything should be recorded in writing, where possible.
Discrimination may be lawful in your circumstances, and there may be an exemption your business can rely on, such as where there is an occupational requirement to have a specific protected characteristic, due to the nature or context of the work. It is advisable if you are relying on an occupational requirement and this is disputed to seek specialist employment advice at an early stage, so that the situation can be carefully managed and limit any liability for your business.
There is much to be gained from ensuring that your workforce is diverse and not discriminatory and that there is a lot to be lost by your business for not having policies and training in place which are implemented properly in relation to discrimination. If you have any questions about discrimination in the workplace or receive a discrimination claim against your business, our specialist employment lawyers can advise and represent you.
