With effect from 26 June 2020, the Corporate Insolvency and Governance Act 2020 (CIGA) affects the ability of Contractors to terminate on grounds that the Employer has entered a formal...
Discrimination and harassment
Why is it important to know about discrimination law?
Discrimination law, which is set out in the Equality Act 2010, is designed to ensure equality of opportunity at work to protect employees’ dignity and to ensure that complaints can be raised without fear of reprisals. Even if an employer is certain that no discriminatory behaviour takes place within its workplace, it is important that you are aware of the issues as liability can arise without warning.
There is no limit to the amount of financial loss that can be awarded in a successful claim for discrimination. Litigation can involve significant management time and legal costs which are usually not recoverable even if the claim is successfully defended.
Allegations of discrimination or harassment are likely to create bad publicity for an employer. It is better to avoid giving rise to the claim than to manage a crisis after a claim has been made. Discrimination and harassment issues can be highly emotive and the process is likely to have a negative impact on employee morale and working relationships.
Discrimination law also affects the workplace in many other less obvious ways. An employer will find it difficult to appreciate an employee’s rights in any given area without first considering whether there are discriminating implications. An example of this is in the field of contract law; the enforceability of contract clauses on, for example, employee mobility or working hours may be affected by discrimination law.
What does the law cover?
An employer will often be held liable for the discriminatory actions of its employees. It may also be responsible for discrimination by external bodies, such as recruitment agencies, if they are acting with the employer’s authority.
The law protects, among others, agency workers, freelance workers, consultants, partners and directors as well as employees.
What types of discrimination are prohibited?
An employer must not discriminate against those who are protected by the Equality Act 2010 on the basis of:
- Gender re-assignment
- Being married or in a civil partnership
- Being pregnant or on maternity leave
- Race (including ethnic or national origin, nationality and colour)
- Sexual orientation
- Religion or belief
Discrimination can be direct or indirect. An employer directly discriminates against the employee if it treats the employee less favourably than it treats, or would treat another person in the same circumstances and does so because of one of the protected characteristics listed above.
An employer indirectly discriminates against an employee if it applies an apparently mutual provision, criterion or practice (PCP) that puts those of the employee’s protected group at a particular disadvantage compared to other groups. The employee must suffer a disadvantage as a member of that group and the employer must be unable to convince a tribunal than its PCP is objectively justified. Protected groups are those defined by reference to any of the above characteristics, with the exception of marital/civil partnership status and pregnancy/maternity which are excluded from protection against indirect discrimination.
Disabled persons are also protected against ‘discrimination arising from disability’ (that is to say, unfavourable treatment arising in consequence of the disability) and a failure by the employer to make reasonable adjustments within the workplace for that disabled person.
Harassment involves unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. It is discriminatory if it is related to any protected characteristics listed above.
Victimisation involves treating a person less favourably because they have complained (or intend to complain about discrimination, or because they have given evidence in relation to another persons complaint). An employee must not be disciplined, dismissed and/or suffer reprisals from colleagues for complaining about discrimination or harassment at work.
Are there any defences to a discrimination claim?
Treatment directed towards an individual will not be indirectly discriminatory if it is objectively justified by the employee. To be justified, it will correspond to a legitimate business aim and be an appropriate and reasonably necessary way of meeting that aim. For example, a requirement to have excellent written English skills may indirectly discriminate against non-British job applicants unless the employer can show that the aims of the job in question cannot reasonably be met without that requirement.
Direct discrimination cannot ever be justified, with the exception of direct age discrimination. Victimisation and harassment can never be justified.
It may be lawful to discriminate against an individual if having a particular characteristic is an occupational requirement. For example, a Christian school may require its religious education teacher to be a Christian. The employer must usually show that it is proportionate to apply that particular requirement. This is not an easy defence for an employer to successfully argue.
There are some instances in which an employer is required by statute to do something discriminatory. By way of example, immigration legislation may require an employer to refuse to employ non-EU job applicant on the ground of their nationality even if they are best qualified for the job.
The law allows employers in some cases to discriminate because of protected characteristics in order to overcome disadvantage or under-representation of a particular group. This is entirely optional and there is no obligation on an employer to take positive action, although sometimes the duty to make reasonable adjustments for disabled persons may involve treating them more favourably to overcome an existing disadvantage.
Employers need to be alert to all situations in which liability for discrimination under the Equality Act can arise. These can include:
- Recruitment and promotion decisions: A lack of written job specifications or failure to follow consistent recruitment procedures can make it difficult to defend a subsequent discrimination claim from somebody who has been treated inconsistently or unfairly when compared to other applicants.
- Harassment: Often the first that an employer knows about harassment is when an employee puts in a written grievance or goes off sick with stress. By this stage, it may be too late to avoid liability.
- Working hours and time off: Employees often request changes to their working hours or duties to meet childcare responsibilities. Since it is mainly women who make these requests, a refusal may constitute indirect sex discrimination unless it can be justified.
- Dress and appearance: If dress codes are incompatible with particular cultural or religious principles, indirect racial or religious discrimination may occur unless the dress code is justified.
- Age criteria in share schemes: Particular care must be taken with vesting conditions for share schemes to avoid age discrimination.
- Stress and disability: Employees with long term stress related illnesses may be protected by the disability discrimination and the situation will need to be handled with care.
Practical steps to reduce risk
To help avoid breaching discrimination law, an employer should:
- Provide staff with employment handbooks, including policies on equal opportunities and harassment training which explains clearly what constitutes acceptable behaviour and what does not.
- Provide training on equal opportunities and harassment. This may help managers to avoid inappropriate questions in interview or to recognise and deal with harassment at an early stage.
- Set up clear procedures for staff to raise concerns and complaints and for dealing 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 disabled employee in the workplace.
- Accommodate workers from different cultures and religious beliefs if possible. For example, requests for time off to pray should be allowed unless a refusal is justified.
- Try to accommodate a request for family-friendly hours by employees with childcare and family commitments unless refusal is justified.
- Carry out equal opportunities monitoring but do not use the forms as part of recruitment or other decision-making. Data from the forms should be anonymised.
Please contact us to discuss how we can help you or your business with any of your employment law needs.
This information has been prepared for general interest and it is important to obtain professional advice on specific issues. We believe the information contained in it to be correct at the time of publication. While all possible care is taken in the preparation of this, no responsibility for loss occasioned by any person or refraining from acting as a result of the material contained herein can be accepted by the firm or the authors.