Earlier this year, the chairwoman of the Food Standards Agency suggested that unhealthy food, such as cake, should be kept out of the workplace to promote people’s health and wellbeing.
In many workplaces, it has become customary for employees and employers to bring myriad sweet treats along to the office. Birthdays, the Christmas party and the occasional Friday all provide an opportunity for colleagues to indulge in cakes, biscuits, doughnuts and the like. However, by facilitating this sugar-fuelled fun, are employers unwittingly leaving themselves exposed to potential claims?
Under the Equality Act 2010, direct discrimination occurs when an individual with a protected characteristic (age, disability, gender, marriage, pregnancy, maternity, race or sexual orientation) is treated less favourably than their contemporaries because of their protected characteristic. Consequently, providing protected employees the same opportunity to enjoy a few slices of cake as their colleagues does not necessarily amount to direct discrimination. If, however, an employer or employee purchased and distributed a cake knowing that a colleague lives with type 2 diabetes*, that employer could find themselves at an employment tribunal.
Direct or indirect discrimination
In truth, employers are unlikely to deliberately discriminate against an employee with, well, cake. A more probable scenario is that food is provided in all innocence and staff are simply permitted to tuck in at will, oblivious to the fact that some people may be unable to because of their protected characteristic. Here, businesses may be liable for indirect discrimination.
Indirect discrimination, broadly speaking, is concerned with acts, decisions or policies that do not intentionally treat anyone less favourably, but nonetheless have the effect of disadvantaging protected employees. On its face, it may seem difficult to establish exactly how someone has been particularly disadvantaged by the appearance of the odd cheesecake or a rogue chocolate bourbon. If, however, we conflate an individual’s inability to consume the goods with his employer’s policies of equality and inclusion, it becomes apparent that they could quite convincingly assert that their employer has ostracised them from their colleagues.
The ingredients for success in a claim discrimination are far less complex than the cakes that supply them. All that is required is that a protected employee, in the circumstances, would have preferred to have been treated differently.
To limit their liability, businesses may be able to rely on the ‘objective justification’ defence. Here, employers must show that their actions can be objectively justified as a proportionate means of achieving a legitimate aim. Indeed, the EHRC services code helpfully provides some examples of legitimate aims, which include, but are not limited to, economic efficiency, fair exercise of powers, health and safety and ensuring wellbeing and dignity. But employers should tread carefully when relying on this defence because, even if the aim is a legitimate one, the means of achieving that aim must be proportionate.
Reducing exposure to claims
While an outright ban is unlikely to rally the troops, organisations should be mindful of their policies on food in the office and work-related events. Instead of filling employees' Christmas stockings with hot chocolate or candy canes, employers need to practise what they preach and diversify the foods that are available to staff. Discrimination claims can be costly and, given their nature, often walk hand in hand with reputational damage.
Paul Kelly is head of employment law at Blacks Solicitors
* This article was updated on 5 October to clarify that the author is referring to type 2 diabetes speficially