Avoiding the inadvertent discrimination trap

Jo Powis and Shannon Diggory set out five practical tips for employers

Over recent years, cases of overt or intentional discrimination have become less common. The result has been a shift in focus to discrimination that is not necessarily as obvious and is often perpetrated by employers with good intentions. This, however, is not an adequate defence to unlawful discrimination. It has long been understood that a decision-maker can act in a way that is unlawful without realising they are doing so, or even after having consciously striven to make a decision that is neutral in respect of age, race, sex, etc.

Recent efforts have been made to shine a light on the resulting, and often hidden, imbalances in the workplace through measures such as gender pay gap reporting. Although a gender pay gap does not necessarily equate to a breach of the ‘same pay for the same work’ principle enshrined in equal pay laws, the requirement to report will force companies to consider the reasons for their gaps and what they can do to tackle them.

Employers (and the government) are also regularly being called to account for the inadvertent discriminatory consequences of policies and procedures (indirect discrimination); for instance, the indirect sex discrimination highlighted in Unison’s ultimately successful challenge to the tribunal fees regime.

Good HR practice therefore requires careful consideration of impact in addition to purpose. But that is not always as easy as it sounds – how can you avoid doing something that you are not aware you are doing?

(1) Focus on facts, not assumptions

We are all familiar with the old adage, and as a rule of thumb it is safest not to assume. In doing so, you may inadvertently introduce your own prejudices, which, at the very least, may cause offence and, at worst, may amount to discrimination. For example, deciding not to put forward a female employee with young children for promotion, on the basis that the new role would involve longer hours, amounts to an assumption as to that employee’s childcare commitments. If in doubt about whether an employee is interested in being considered for a promotion, simply ask and have an open mind to the response and if it affects the decision-making process.

(2) Avoid categorisation based on personal characteristics

Targeted employee communications based on real or perceived characteristics, such as age, gender or race, must be avoided. Instead, communications should be directed to employees as a collective body, with employees deciding on the relevance. For example, rather than contacting a limited group perceived to be non-UK nationals regarding the impact of Brexit, provide the basic information to all employees with an instruction as to how they can find out more. Where more targeted communications are necessary, focus on business lines (such as department or role) rather than personal characteristics.

(3) Tackle unconscious bias

Paradoxical as it sounds, it is crucial to be aware of unconscious bias, and to take steps to tackle it within your business. Unconscious bias occurs when assessments of people and situations are influenced by factors of which we are not consciously aware, such as background, cultural environment and personal experiences. For example, an employer may favour an employee for promotion who is from a similar background, or assume that someone who dresses conservatively is more competent than someone who does not. Training is crucial to assist decision-makers in understanding their biases and how to focus decisions on demonstrable skills and competency-related behaviours rather than stereotypes.

(4) Positive action, not positive discrimination

Many a well-meaning employer looking to diversify its workforces has been caught out by favouring individuals who typically suffer discrimination. This ‘positive discrimination’ is unlawful unless the employer can show the candidates were equally qualified, justifying the selection of the candidate from the underrepresented group. The circumstances in which two candidates with differing CVs and employment background could be said to be equally qualified are likely to be slim; employers should therefore instead focus on lawful ‘positive action’ by taking steps to enable or encourage people from underrepresented groups to overcome or minimise the disadvantage they suffer. This might mean setting up internal networking groups for staff from minority groups to aid career progression and providing targeted training bursaries.

(5) Deal with complaints consistently

Internal grievance procedures, whistleblowing and employee support mechanisms must be applied consistently to all employees, and allegations of discrimination carefully considered and responded to. Once an employee has complained of discrimination, detrimental treatment of that employee as a result of their complaint can amount to discrimination in and of itself (even if the original complaint was unfounded).

Ultimately, attention and a rational, evidence-based decision-making process is crucial for ensuring that decisions are not discriminatory. In today’s workplace equality is paramount: good intentions alone are no longer good enough.

Jo Powis is a senior associate and Shannon Diggory an associate at Reed Smith