Discrimination

Being treated unfairly in the workplace because of a protected characteristic is not only unacceptable it is illegal. Employers need to take steps to prevent any bias, less favourable treatment, harassment or victimisation based on these characteristics not only to avoid a discrimination claim but to protect the health and wellbeing of their employees and avoid potential damage to their brand.

What are the protected characteristics?

• Age
• Gender
• Pregnancy and maternity
• Sexual orientation
• Marital status
• Race or ethnicity
• Religion or belief
• Disability
• Gender reassignment

The Equality Act 2010 sets out various types of unlawful discrimination where treatment is based on one of the above characteristics. It is important to understand the different types of discrimination and to take steps to prevent such behaviour within your organisation.

If you receive a complaint from an employee about discrimination, it is important that it is investigated and handled swiftly and sensitively. Having specific anti-harassment and bullying, equalities and grievance procedures can all assist with this.

What is discrimination?

There are three main types of discrimination:

1. Direct discrimination – occurs where an employee has been treated less favourably because of a protected characteristic. For example, preferring male employees for promotion.  For example, preferring a candidate at interview because of their race or nationality. The employee concerned may not have the particular characteristic themselves, but there can still be discrimination if they are perceived to have that particular characteristic or if they are associated with someone who does. For example, less favourable treatment of an employee who has time off to care for a disabled relative.
2. Indirect discrimination – can occur where arrangements or rules in the workplace that apply to everyone result in a particular disadvantage for an employee as a result of a particular characteristic.  The arrangements may not be discriminatory if the employer demonstrates there is an ‘objective justification’ for their rules. This is referred to as showing a ‘proportionate means of achieving a legitimate aim’.
3. Harassment – occurs where an employee is subjected to behaviour that violates their dignity or creates an intimidating, humiliating or hostile environment for them in the workplace. Sexual harassment is a specific type of behaviour and there has been a significant increase in awareness following the #metoo movement.

Employers also need to be aware that employees are protected from victimisation – less favourable treatment because they have made a complaint about their rights under the Equality Act.

How should an employer deal with a complaint about discrimination?

It is in the best interest of the employer and employee to resolve any concerns raised about discrimination as quickly and appropriately as possible and early legal advice can be useful for guidance on a thorough investigation and objective decision making process. Mediation and other options should also be considered.

Usually the first stage is the employee raising a formal grievance, however, employers must recognise inappropriate conduct in their workplace and take action, even if the employee does not make a formal complaint.

If the situation escalates or immediately results in a claim, the employer may have an opportunity to resolve through the ACAS conciliation process.

If a discrimination claim proceeds to the Employment Tribunal there is no cap on the amount of compensation that the tribunal can award.

How can a discrimination claim be avoided?

Having an engaged and happy workforce is now well recognised as a strong way to improve overall business performance. Ensuring fairness is key to this and setting clear standards and forming a code of practice will help to make it clear to employees that discriminatory behaviour is unacceptable. It is also important to include equality objectives as part of overall business strategy and ensure leadership from the top down. Having regular training and encouraging discussion should also help raise awareness  and create an inclusive and happier workplace.

What are reasonable adjustments?

If an employee is disadvantaged in the workplace due to disability, the employer has a duty to make reasonable adjustments to help alleviate the disadvantage and keep them in the workplace. For example, a reasonable adjustment could be to provide easier access for an employee with mobility concerns. Occasionally the request for an adjustment may be disproportionate or extremely difficult to implement and it may then be reasonable to refuse, but this is a complex area and we would recommend seeking advice before making such a decision.

Not just employees are protected.

It is also imperative for an employer to understand that discrimination can occur even at the recruitment stage and not just after someone is employed. Therefore it is important to be careful with job specifications and adverts.  If you have particular criteria for a new position and are concerned that this could be discriminatory please speak to a solicitor.

For more information on how we can help support you if you are concerned about a discrimination claim, please contact one of our employment specialists below.