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Employment Newsletter - Issue 20

7th April 2022

Employment Newsletter - Issue 20

Focus On? Avoiding discrimination claims

What is discrimination?

Your employees, job applicants, workers, and officers are protected from discrimination at work under the Equality Act 2010 in connection with particular protected characteristics. These are as follows: 

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

Generally speaking, discrimination is treating somebody unfairly because of one of the above protected characteristics, or because they are associated with someone who possesses a particular characteristic. However, there are also various types of discrimination which employers need to be aware of. Under the Equality Act, individuals have protection from direct discrimination, indirect discrimination, harassment, victimisation, or instructing, causing, inducing and helping discrimination.

It is important that employers put in place measures to try and avoid discrimination or harassment in the workplace. Successful discrimination claims are not capped in terms of the compensation which can be awarded by a tribunal. Compensation can be awarded for financial loss (such as loss of earnings) and non-financial losses (such as injury to feelings and personal injury). From 6 April 2022, the bands used to calculate injury to feelings shall increase to:

  • a lower band of £990 to £9,900 for less serious cases;
  • a middle band of £9,900 to £29,600  for cases that do not merit an award in the upper band; and
  • an upper band of £29,600 to £49,300 for the most serious cases, with the most exceptional cases capable of exceeding £49,300.

Discrimination claims can also damage employee-employer relations and harm an employer’s reputation. It is also worth noting that suppliers tendering for business, particularly with the public sector, will be asked to disclose whether they have been the subject of any discrimination claims.

How do you avoid discrimination in the workplace?

Whilst it may not be possible to eliminate the risk of discrimination and harassment altogether, there are things that can be done to mitigate the risk and that will, in turn, assist if you find yourself in the unfortunate position of having to defend a claim.

  1. Produce an equal opportunities policy

     You should ensure that your Company has a clear equal opportunities policy. Although this is not required by law, it is recommended by the EHRC Employment Statutory Code of Practice that you have one in place to set minimum standards of behaviour and to take a proactive stance against discrimination. Whilst the Code is not legally enforceable, any breach will be taken into account by a tribunal when deciding whether discrimination has taken place.  The existence of a robust policy is also important as the Company can be held liable for the discriminatory acts of its employees. Under the Equality Act 2010, anything done by an employee in the course of employment, is treated as having been done by the employer, regardless of if the employer had knowledge of the employee’s actions.

    In the event of a breach of the policy by a worker, if appropriate action is taken against the worker, having an equal opportunities policy in place can assist the Company in establishing a ‘reasonable steps’ defence where legal action is taken against the Company for the employee’s discriminative actions. In some circumstances, this can result in the Company avoiding liability which instead will land in the individual perpetrator’s lap.
  2. Combine policies with training

    An equal opportunities policy should always be combined with equal opportunity and diversity and/or anti-bullying and harassment training to ensure that workers understand their obligations under the policy and under the Equality Act 2010. It is also important to educate staff on what language and behaviour is acceptable in the workplace. 

    The EAT decision in Allay (UK) Ltd v Gehlen emphasised the importance of keeping training up to date in order to rely on the ‘reasonable steps’ defence in discrimination claims. Mr Gehlen complained that he had suffered racial harassment by another employee. Allay (UK) Ltd upheld the complaints and ensured the individual attended further equality and diversity training. Allay (UK) Ltd later tried to rely on the reasonable steps defence. The tribunal found that the individual had not had equal opportunities for two years prior to making the harassing comments, and that the training was therefore ‘stale’. 

    The EAT found that a reasonable step would have been to refresh the training and to look at how effective it has proved to be in practice. The EAT concluded that the training was no long effective as the individual thought that his comments were ‘banter’ and other employees took no action once they became aware of the comments. 

    This case serves as a reminder that employers should ensure that they are regularly refreshing equal opportunities training and also monitoring the effectiveness of such training.
  1. Have a zero tolerance approach to harassment

    The most common form of discrimination-based complaints that we see revolve around inappropriate comments or behaviours that take place between colleagues in the workplace.  Managers often know these things go on but turn a blind eye unless an employee specifically complains.  The days of old school “banter” are gone and jokes and nicknames often risk causing offence and, in turn, a claim against the company.  Employees should be reminded that it is irrelevant as to whether they intend to cause offence, if the comment or action has the effect of doing so, harassment will have taken place.

    We recommend that all complaints are taken seriously and investigated properly.  If it is found that harassment has taken place then formal disciplinary action should be taken against the perpetrator.  This will send a message to employees that offensive comments or actions will not be tolerated by the company and, again, will assist in any defence to legal action.
  1. Review and amend existing policies and procedures

    You should regularly review your policies and procedures to ensure that they are not indirectly discriminatory. Indirect discrimination is where a policy, practice or rule applies to all workers in the same way, but detriments a group of people with a shared protected characteristic.

    For instance, an absence management policy or procedure should not place disabled or pregnant employees at a disadvantage if they are having to take more time off work due to their disability or pregnancy. Likewise, requiring full-time working hours could indirectly discriminate against women who are likely to have childcaring responsibilities. This was the case in Thompson v Scancrown Ltd where it was found that requiring a Sales Manager to work full time, 9am-6pm, Monday – Friday was indirectly discriminative against women. The tribunal found that it is a generally accepted fact that childcare still falls predominantly on women and that the requirement to work full time puts women at a particular disadvantage. The claimant was awarded a hefty award of £184,961.

    Similarly, it could also be a failure to make reasonable adjustments if a disabled person with a particular condition was required to work full-time. Reasonable adjustments may need to be made for disabled workers if a policy places them at a particular disadvantage. 

    If you keep policies in place which may be indirectly discriminative to those with certain protected characteristics, you should ensure that these policies are a proportionate means to achieving a legitimate aim in order to have a defence at tribunal. For instance, dress codes or language requirements could be indirectly discriminative on the grounds of religious belief, sex, or race. However, in certain circumstances, dress requirements may be necessary for achieving a legitimate aim such ensuring the health and safety of employees. In a scenario such as this, we would advise that you consult with staff first to see if any exemptions should be made.
  1. Equality and diversity monitoring

    As part of recruitment, and throughout employment, you may want to distribute equal opportunity monitoring questionnaires. These could assist you in monitoring the different protected characteristics you have in your workforce in order to ensure workers are not being placed a disadvantage in terms of their pay, promotions and benefits. However, we recommend that any data is collected anonymously, in order to comply with your obligations under GDPR. If such data is collected during the recruitment process, it should not be provided to the decision makers in order to avoid unconscious bias.
  1. Consider your recruitment process

    Throughout the recruitment process, you need to be alive to the risk of claims for discrimination. For instance, certain requirements could put certain individuals at a particular disadvantage or you could unconsciously favour particular characteristics. We recommend that you consider the following in order to reduce the risk of discrimination claims:

    Prepare an objective job description and person specification. You should focus on the skills and experience necessary for the role in order to prevent unconscious bias towards a characteristic. You should only include the skills, qualifications and experience which are relevant to the job role so that you do not disadvantage certain candidates unnecessarily. Similarly, when you are shortlisting an individual, you should record the grounds for doing so and ensure that they are based on the application content and job description to allowing other factors to cloud judgement.

    Remove personal data from applications. Employers are adapting their recruitment processes to strip applications of the data that might cause discrimination issues. You could consider redacting dates of birth and names from application forms in order to avoid age, race and sex discrimination or unconscious bias. 

    Consider if adjustments need to be made to the selection process. For instance, you should consider the location and timings of interviews. Adjustments may need to be made to the location of the interview if it is not reasonably accessible for disabled applicants. It should also be ensured that interview dates are not placed on a religious holiday as this could disadvantage somebody with a particular religious belief.

    Health related questions should not be asked during the recruitment stage. An employer can ask health questions at the offer stage. However, questions should be role specific and must relate to certain requirements of the job.

We will have more advice and guidance on the above in our webinar on the lifting of restrictions which is scheduled to be held at 9.30am on the 20th April 2022. There will also be a chance to ask questions. For further details about the webinar, please click here.

If you have any questions in the meantime, please do not hesitate to get in touch with a member of the team on 0345 111 5050.

 

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