Employment

Workplace discrimination

As a human resources professional, you have a dual role: you work to respond to concerns raised by employees while, at the same time, protecting the interests of the business. You achieve the latter in part by ensuring that the business is fully compliant with employment law, and that it responds appropriately to grievances raised by employees.

Discrimination is a complicated area of employment law which represents a significant risk to large companies. Discrimination is not always deliberate and you are reliant on your managers and employees being alive to potential issues and dealing with those issues appropriately (and early).

Given the significant time that people invest at work, and the importance of their job to most people, it is of course right that the law provides a variety of legal protections for employees. Central to these is the right to freedom from discrimination at all stages of employment: nobody deserves to be harassed, bullied, or treated unfairly in their application for work or whilst earning an honest living.

The costs to those who do experience prejudice in the workplace can be high, from debilitating stress and ill health to job loss and difficulties securing new work. But workplace discrimination can be just as costly for employers given that allegations, and particularly proven claims of discrimination, can lead to:

significant (sometimes irreversible) damage to your brand;
an erosion in staff morale and engagement, leading to employee turnover;
difficulty recruiting new talent (and particularly diverse talent, which has been shown to improve business performance);
legal action (and consequential legal costs) for the claim;
an increase in claims from other disgruntled employees encouraged by legal action taken by others;
reduced performance and profit.

This all means that eliminating workplace discrimination should be part of any good business strategy. It’s also just the right thing to do.

Types of workplace discrimination

The Equality Act 2010 cites nine ‘protected characteristics’. These are:

Race;
Age;
Disability;
Marriage or civil partnership;
Gender reassignment;
Religion or belief;
Sex;
Pregnancy and maternity; and
Sexual orientation

Any unfair treatment by employers or colleagues that is because of one or more of these protected characteristics will constitute discrimination. It is also possible to inadvertently discriminate against an employee, for example where your business had a rule or practice which applies to everyone in the same way but has a worse effect on some people than others because of a protected characteristic.

Other legislation also protects workers on fixed-term or part-time contracts from being treated less favourably than comparable permanent or full time workers.

In relation to disability, it is important to be aware that employers have a positive duty to make changes to remove or reduce a disadvantage faced by a disabled applicant or employee because of their disability. This is known as making “reasonable adjustments” and might include steps such as:

Installing wheelchair ramps.
Providing extra time to complete interview tests or tasks in general.
Help to complete application forms – for example providing braille transcriptions or audio.
Accommodating the use of hearing aids or similar communication aids during interviews and day-to-day work.
Adjusting working hours or giving more frequent breaks.
Adjusting duties.
Providing specialised equipment or support.

In an employment context, discrimination can occur:

During the recruitment process – e.g. in respect of the wording in an advertisement, treatment during the interview process or the decision to hire or not hire a particular person.
In relation to the terms and conditions of employment offered at the outset or throughout their employment.
In an employee’s access to promotion or transfer opportunities, training and/or professional development.
In the general treatment they experience during their time with the company.
In a decision to discipline an employee or subject them to performance management.
In a decision to make a particular employee redundant or to otherwise dismiss them.

A dismissal caused by discrimination will be automatically unfair. Unlike unfair dismissal, an employee (or worker) does not need to have worked for you for a period of time in order to being a claim for discrimination.

An employee can bring a claim against:

Your business (on the basis that is vicariously liable for acts done by others in the course of employment); and/or
Individuals the person considers to be responsible for the discrimination. This is more common in connection with claims of direct discrimination and/or harassment.

UK equality legislation distinguishes between direct and indirect discrimination, and also establishes a right to claim for harassment and/or victimisation.

Direct discrimination is less favourable treatment because of a protected characteristic.
Indirect discrimination occurs when rules or arrangements apply to a number of employees in the same way but cause a particular disadvantage to an employee because of a protected characteristic.
Harassment is unwanted behaviour related to a protected characteristic which is meant to or has the effect of violating an employee’s dignity, creating an intimidating, hostile, degrading, or humiliating environment.
Victimisation is essentially treating an employee badly because they have complained about discrimination.
Discrimination arising from disability is when an employee is treated unfavourably because of something arising because of their disability (as opposed to because of the disability itself).

Avoiding discrimination and resolving disputes

You should ensure that all of your employees (especially managers) understand discrimination and have detailed training on recognising and avoiding discrimination in the workplace. Such training helps to create a positive and productive workplace free from discrimination, reduces the possibility of claims, and/or ensures problems are raised at an earlier stage. Meaningful training can also give your business a defence in the event of a tribunal claim by allowing you to demonstrate that you took ‘all reasonable steps’ to prevent discrimination. Foot Anstey can also provides you with tailored training on all aspects of employment law for managers and employees.

Your grievance process should be the first place to start where complaints of discrimination are raised. You will want to ensure staff are committed to following a detailed investigation – and that they are focussed on resolving problems in the first instance.

If things don’t go well, the employee may choose to bring a claim for discrimination before an employment tribunal. Usually you will have advance warning that they intend to do so because of a grievance that has been raised, and/or because you have been contacted by ACAS in a process known as ‘early conciliation’.