June 2021 saw nations around the world celebrating LGBTQ month.
The abundance of rainbow colours and symbols reminded us of the importance of diversity and the protection of people’s human rights. For employers, it is a good time to review their workplace discrimination policies and organise up-to-date training for managers. Workplace discrimination can be unlawful under the Equality Act 2010 (EqA 2010) and people who can prove that they have been discriminated against can make a compensation claim in the Employment Tribunal. Therefore, it is crucial that SMEs work with an Employment Law Solicitor, who can help create and implement robust anti-discrimination policies and procedures. These will assist in protecting your company from discrimination claims and promote a welcoming and diverse workplace.
In this article, we look at workplace discrimination and how SMEs can ensure that their workplace is safe for people who have a protected characteristic and mitigate the risk of a discrimination claim being brought.
What is workplace discrimination?
Discrimination happens when a person or a group of people are treated differently because of a certain characteristic they possess or due to the fact they are associated with someone who possesses a particular characteristic. The EqA 2010 covers discrimination relating to nine protected characteristics:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion and belief
- Sexual orientation
What are the types of discrimination?
There are five types of discrimination identified by the EqA 2010:
- Direct discrimination (section 13)
- Indirect discrimination (section 19)
- Harassment (section 26)
- Victimisation (section 27)
- Instructing, causing, inducing and helping discrimination (sections 111 and 112)
This occurs when person B, who has a protected characteristic or is associated with someone who has a protected characteristic, is treated by person A less favourably than person A would treat others.
Indirect discrimination may be present where certain acts, determinations or policies result in a group of people being discriminated against indirectly. For example, if a policy of regular 8 am meetings is put in place, this may discriminate against those who have children who need to be taken to school at this time.
Harassment occurs when A engages in unwanted conduct relevant to a protected characteristic and that conduct violates person B’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for person B.
Harassment can also be related to conduct of a sexual nature.
The EqA 2010 victimisation provisions safeguard a person who does or is contemplating doing a ‘protected act’ from suffering detriment. A common example of a protected act is bringing a discrimination claim against your employer. Another is giving evidence in discrimination proceedings brought by a colleague.
Employees cannot be dismissed for bringing a claim for workplace discrimination as this would breach the victimisation provisions of the EqA 2010.
Instructing, causing, inducing, or knowingly helping unlawful acts
It is unlawful under the EqAct 2010 to instruct, cause, induce or help someone to discriminate against, harass or victimise another person, or to attempt to do so.
When is employment discrimination lawful?
Employers facing discrimination claims may be able to rely on exemptions provided by the EqAct 2010. These include:
- Situations where, having regard to the nature or context of the work, being of a particular sex, race, disability, religion or belief, sexual orientation, or age (or not being a transsexual person, married or a civil partner) is an occupational requirement.
- To comply with the doctrines of an organised religion it is an occupational requirement that a person be of a particular sex, be unmarried, divorced etc
- The employer has a particular religious ethos and can show that it is an occupational requirement that they employ someone with a certain religious belief.
- The job is in the armed forces and it must be done by a man or someone who is not transexual.
- An employment service provider can treat a person with a protected characteristic less favourably if the treatment relates to work that could be refused by that person because of an occupational requirement.
An Employment Solicitor can assist you with building a defence based on occupational requirements should you face a workplace discrimination claim in the Employment Tribunal.
Five things you can do now to protect your business from discrimination claims
- Speak to an Employment Lawyer about updating and implementing your anti-discrimination policies and procedures.
- Ensure managers undertake regular anti-discrimination training courses and charge them with building a culture of acceptance and diversity through leading by example.
- Be prepared to investigate complaints of discrimination and document the proceedings to ensure they can be used in evidence should a claim be brought in the future.
- Carefully analyse your job advertisements and recruitment process. Avoid using phrases such as ‘recent graduate’ or ‘mature outlook’ as these may discriminate against older and younger applicants.
- Be conscious of the risk of indirect discrimination. For example, if you own a hairdressing salon and require all employees to have the latest hairstyles on display, you could indirectly discriminate against people whose religious faith requires them to wear headscarves.
Investing the time and resources needed to create an anti-discrimination culture in your workplace will pay dividends in the long run. Companies with a strong reputation in encouraging diversity attract the best employees and retain loyal customers.
Furthermore, there have been recent examples of employees staging walkouts and protests against their employers should the latter take action they consider unethical. These types of demonstrations often hit the media, providing a headache for the marketing/PR team.
An Employment Law Solicitor can assist you with building an anti-discrimination culture in your workplace. If you receive a discrimination claim against you, they will advise and represent you, ensuring your best interests are protected.