At a time of unparalleled focus on the goals of equality, diversity and the prevention of unfair discrimination, it seems odd that so many employers still struggle to properly understand and prevent discrimination in the workplace.
The Equality Act 2010 (EqA 2010), which implemented the principle of equal treatment and brought together our various laws on discrimination, is the basis of the law in this area. It prohibits direct discrimination, indirect discrimination, harassment and victimisation in the employment field on the grounds of any of the ‘protected characteristics’ which it identifies (and which protections incidentally also apply in the provision of goods, facilities and services, the exercise of public functions, premises, education and the membership of clubs and associations).
The various protected characteristics, and thus the forms of discrimination that are unlawful, are:
- Age discrimination
- Disability discrimination
- Gender reassignment discrimination
- Marriage and civil partnership discrimination
- Pregnancy and maternity discrimination
- Race discrimination
- Religion or belief discrimination
- Sex discrimination
- Sexual orientation discrimination
Discrimination law is a complex area, which can understandably create confusion for employers. Nonetheless, the key principles outlined in the EqA 2010, that an employer should not discriminate on the basis of the protected characteristics, are neither difficult to comprehend nor to implement and enforce. In the majority (if not all) cases of discrimination it will be an individual, or more than one, who discriminates. It can include discrimination through not hiring an applicant despite their suitable qualifications for the role, purposely selecting an employee on the basis of a protected characteristic for redundancy, failing to promote because of pre-conceptions of likely behaviour, through to outright harassment of a mental or even a physical nature.
The employer is liable for these acts and behaviours (on a vicarious basis), as indeed is the individual. However, there is a defence available to an employer if it can show that it took ‘all reasonable steps’ to prevent the employee from doing the discriminatory act or from doing anything of that description under s109(4) of EqA 2010.
Of course, if acts of discrimination can be prevented in the first place, so much the better. Employers should therefore ensure that they:
- Understand their key obligations.
- Adopt a straightforward, easy to understand policy.
- Properly communicate this to all employees (and workers).
- Implement this alongside (and reinforce with) proper training.
- Communicate the message regularly
- Enforce the policy
There is a wealth of information available to employers, but a sensible starting point for guidance is the ACAS website, which includes a simple guide, and for more detailed guidance, the EHRC website.
Proper training is key not just to the implementation and enforcement of policy (reducing the likelihood of discriminatory acts in the first instance), but also, if discrimination has taken place, to an employer being able to demonstrate it took ‘reasonable steps’ to prevent the discrimination (and thus avoiding liability for that discrimination).
The key steps to prevention mirror closely the key actions required of an employer in demonstrating it has taken reasonable steps to avoid discrimination occurring.
The courts have made it clear that those reasonable steps will normally include:
- Having and implementing an equal opportunities policy and an anti-harassment and bullying policy, and reviewing those policies as appropriate.
- Making all employees aware of the policies and their implications.
- Training managers and supervisors in equal opportunities and harassment issues.
- Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.
Our discrimination laws may be complicated, but employers can and should be implementing the above to:
- Deter and prevent unfair and unlawful practices which give rise to claims, impact the workplace and can have serious adverse effects on individual victims.
- Demonstrate they are taking ‘all reasonable steps’ to prevent such discrimination.
- Avoid claims which are damaging, time consuming and (unlike unfair dismissal, for example) are not subject to a statutory cap on compensation.
Nick Evans is a partner in the employment team at Fletcher Day, the City law firm