Avoiding a discrimination claim

Written by: Tina Chander
Published on: 19 Sep 2023

Discrimination

Image © thodonal / Adobe Stock

The first piece of discrimination-related legislation introduced in the UK was the Race Relations Act 1965, which prohibited certain discriminatory acts against anyone on racial grounds.

 

Although it was limited in what it was designed to achieve, it was the start of a legislative programme (which included the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act) that culminated in the Equality Act 2010.

The act harmonises all previous legislation dealing with discrimination and sets out specific characteristics that are explicitly protected by law.

Although the application of common sense is sufficient to understand the main thrust of the legislation, the devil is in the detail with which all organisations must be thoroughly acquainted. Failure to grasp this detail could result in a claim – which, if successful, could leave an organisation facing an unlimited compensation award.

What constitutes discrimination?

The Equality Act protects every individual in the country against being treated unfavourably by reference to nine protected characteristics – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Compared to previous legislation, this act goes further in its definition of distinct forms of discrimination.

Direct discrimination

Probably the most recognisable form of discrimination, direct discrimination occurs if an individual is treated unfairly or differently because of a protected characteristic – for instance, denying someone a promotion because of their sex or race.

Direct discrimination can also be extended to individuals by perception (where they are perceived to possess a protected characteristic, such as someone being discriminated against because they are perceived to be gay) and by association (for example, they are associated with others who have a protected characteristic – for instance, an employee with a disabled child).

Indirect discrimination

Indirect discrimination can be harder to identify and be inadvertent. It could occur if an employer puts in place a general policy that applies to everyone in the organisation, but ends up having a disproportionate impact on someone, or a group of people, with a protected characteristic.

Examples could include imposing specific rest breaks that may discriminate against employees with a condition, such as diabetes, who may need more frequent – if shorter – breaks, or requiring all staff to work a Saturday shift without taking into account the religious beliefs of some groups or individuals.

Harassment

Harassment occurs if someone suffers unwanted conduct because of a protected characteristic, creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

Victimisation

Victimisation is a specific term that applies if someone is treated unfavourably because they have raised a complaint, or they are supporting another person in a discrimination complaint. Victimisation has its own legal definition and should not be confused with harassment or bullying.

Vicarious liability

Several claims have occurred where an employer has been held liable for the discriminatory behaviour of one employee towards another if the discrimination happens “in the course of employment”. However, it does not matter if the discrimination occurs outside the workplace as these behaviours often occur at workplace parties or via social media.

Elderly worker

Image © Oleksandr / Adobe Stock

Avoiding discrimination claims

Several practical steps should be taken by an employer to protect its business against discrimination claims. The first step is to review all policies and procedures, the second is to undertake a culture survey to understand prevalent attitudes, and the third is to audit training programmes to counter discriminatory behaviours and instil a positive attitude to inclusivity and diversity.

Policies

Employees must have access to every policy – and know where to find them. A discrimination policy should set out a commitment that everyone in the business – and those who come into contact with the business – are treated fairly and respectfully. As a minimum, such a policy should cover recruitment, remuneration, training and promotion, and behaviour towards third parties.

In addition, other policies covering matters such as disciplinary and grievance, sickness, absence, annual leave and dress codes also need to be reviewed to ensure that they do not inadvertently promote indirect discrimination. For example, sickness and absence policies need to take into account additional requirements that employees with disabilities may have, such as additional time off for medical appointments or extended periods of sick leave.

Training

Various training modules cover diversity and inclusion that can be tapped into along with plenty of guidance from organisations such as ACAS and the Equality and Human Rights Commission.

It is particularly important that employers ensure those employees responsible for recruitment, promotion, and performance management understand what constitutes discriminatory language and behaviour, and especially what can lead to an accusation of indirect discrimination, which can be less obvious to spot.

Culture

It is a truism, but the tone of an organisation’s culture is set from the top. The senior team’s attitude to discriminatory behaviour will influence how employees behave towards each other in turn. A no tolerance approach to discrimination must be backed by positive reinforcement that a diverse workforce is a productive workforce. Employers will need to reflect on the outcome of any survey and respond accordingly.

Reasonable adjustments

Employers need to be quite clear on what reasonable adjustments can be made to accommodate disabled staff, job applicants and other visitors. This could include the provision of additional office equipment, an adjustment of working hours, improving accessibility or providing a suitable parking space. However, the keyword is “reasonable”.

If an employer can prove that the required adjustment is not reasonable (for instance, the cost of providing particular equipment proves excessive), any perceived unfairness could be lawful – but the decision-making process must be carefully recorded.

Recruitment

Recruitment can be a minefield as the legislation extends to job applicants. Employers must avoid using words or descriptions that might imply discrimination, so only mention those attributes specifically required for the job. Specifying “a recent graduate” or “very experienced person” can be interpreted as age-related discrimination unless it is a requirement of the post.

When interviewing candidates, they must not be asked about “protected characteristics” unless it is directly relevant (such as a minimum age for bar staff).

Finally, employers can take positive action to encourage individuals from under-represented groups to apply for particular roles and then appoint them – where, for example, two candidates are of equal merit. Nonetheless, employers should always follow an objective recruitment process as prospective candidates can bring discrimination claims if they feel they have been unfairly treated.

Redundancy

Redundancy situations are fraught at the best of times, but can be made more so if the prescribed procedure is not followed correctly and the person(s) at risk of redundancy considers that they are being discriminated against because of a protected characteristic, such as pregnancy or age.

In conclusion

Falling foul of discrimination legislation can be reputationally – as well as financially – damaging, so ensuring there’s a good understanding of legal obligations is critical.