Making equality at work a priority helps to reduce the risk of discrimination claims while promoting positive workforce relations. We can advise on all aspects of discrimination & equality at work.
Discrimination at work can have serious implications for a business, both practically and legally speaking, even if this is unintentional. Unlawful discrimination claims typically result in high awards of damages against employers.
Equally, discriminatory conduct in the workplace can easily lead to conflict, tainting working relationships and fostering a negative working environment, not to mention causing damage to the employer brand.
Fundamentally, it is unlawful to discriminate against individuals at work by reason of sex, sexual orientation and gender reassignment, age, disability, race, religion or belief, pregnancy or maternity, marriage or civil partnership.
The imperative for equality and diversity in the workplace is mirroring changes in both the law and in the UK workforce demographic, for example, employees are retiring later and more women are active in the labour market. UK employers have to keep pace.
Beyond legal compliance, improving workplace equality brings wider business benefits. Where employees feel valued and supported within the working environment, it helps to attract and retain employees, improve morale, competitiveness, reputation and productivity. Good working practices also reduce the risk of complaints, disputes, disciplinary action and employment tribunal claims.
Under the Equality Act 2010, all workers and job applicants are afforded protection against discrimination, harassment and victimisation in relation to a number of protected characteristics. Under the 2010 Act, there are four different types of discrimination:
Under the 2010 Act, there are nine protected characteristics, including:
By law, all employers are under a statutory duty not to directly or indirectly discriminate against a worker or job applicant by reason of any one of the protected characteristics, either by treating them less favourably or by putting them at a disadvantage. They are also under a duty not to harass or victimise someone for a reason connected to one of these characteristics.
The protection from unfair treatment at work is automatic. This essentially means that a worker is protected from unlawful discrimination, harassment and victimisation from day one of employment, with no qualifying service requirement. Equally, a job applicant is also afforded protection from unlawful discrimination if they have been treated unfairly during any part of the recruitment process. This is because it is potentially unlawful to discriminate against someone from the point at which a job role is advertised, right through to the last day of employment, and even post-termination when it comes to the provision of references.
The duty not to discriminate, harass or victimise a person throughout the lifecycle of employment extends to various key areas, including recruitment, training, promotion and transfer opportunities, pay and benefits, other employment terms and conditions, performance management, retirement, redundancy and dismissal.
There are limited circumstances in which different treatment in connection with a protected characteristic can be lawful at work, for example, where the application of a policy or procedure can be objectively justified as a proportionate means of achieving a legitimate aim. However, objective justification will only provide a defence in limited circumstances, where legitimate aims can include the economic and operational requirements of the business or organisation, the need to run and provide an efficient service, or the health and safety of staff.
In most cases, lawful discrimination at work will relate to indirect discrimination, although direct discrimination in relation to age, and arising from a disability, can also occasionally be objectively justifiable. However, harassment or victimisation can never be justified.
Other exceptions where different treatment because of a protected characteristic is allowed include strict occupational requirements, such as age or gender requirements, provided the protected characteristic is essential for the way in which the business or organisation is run.
In the context of treating a worker or job applicant more favourably because they possess a protected characteristic, it is unlawful to positively discriminate in the workplace. Instead, employers can take positive action where there is evidence that those from, for example, a particular ethnicity or age group, are potentially at a disadvantage or under-represented in the workforce, or have other specific needs connected to a protected characteristic. Provided any positive action will not discriminate against others at work, proportionate steps can be taken by the employer to reduce or remove any barriers or disadvantages, or to provide training and support, to increase the participation of those from a protected group.
Examples of lawful discrimination at work could include:
Examples of unlawful discrimination at work could include:
Employers must take proactive steps to help minimise the incidence of discrimination at work and protect against claims for unlawful discrimination. Fortunately, there are various steps that employers can take to help avoid the risk of legal proceedings, including:
Employers should have in place a procedure for dealing with employee grievances and complaints of discrimination. A well-functioning internal procedure for grievance handling allows swift and flexible handling of the complaints, and as such can play an essential part in cultivating positive workforce relations.
A grievance procedure should:
Discrimination-related problems are best solved through practical amendments in polices or practices at the workplace level. Complaints should not be disregarded and should be taken seriously, or you risk Employment Tribunal claims which are costly, time-consuming and damaging to the employer brand.
The procedure should be made known to all employees, and line managers should be trained on dealing with complaints in accordance with the procedure.
Employers should also make sure that line managers and supervisors understand the importance of the grievance process and their personal role in maintaining positive workplace relations.
Equality in the workplace drives fairness in opportunity that benefits both employees and employers.
We work with employers to help improve equality of job opportunities and treatment through fair and flexible HR strategies, procedures and policies.
This means ensuring fair treatment across the employee lifecycle, from job applicants during the initial recruitment stage through to existing employees, and taking positive steps to prevent against all forms of workplace discrimination, including direct and indirect discrimination, associative discrimination, harassment and victimisation.
We can help to clarify and articulate what equality means for your organisation and its workforce, which may result in identifying additional support or reasonable adjustment requirements.
Importantly, where a complaint does arise, it may also necessitate a review of policies, disciplinary procedures relating to discrimination to manage any future or further legal risk exposure.
Ensuring that all human resource management policies and practices are free from discrimination requires a systematic approach to managing equality in the workplace. Action to review and revise human resource policies, to train staff responsible for recruitment and human resource management, and to incorporate equality in the company culture is best taken as part of a well-planned and structured company equality action plan.
The company equality action plan is often based on an equality policy stating the company’s commitment to equality. The equality action plan includes often a set of activities and affirmative action measures implemented following a staged approach, starting from assessments and defining targets and actions to implementation and measuring the progress made.
Employers who take equality seriously should adopt an equality policy to formally commit to the principle of equality of opportunity and treatment in their company human resource practices. Just as any other major company policy, the equality policy should be carefully prepared and approved by the company board. Strong senior management support is essential to the success of the equality policy implementation. After adoption the policy should be displayed and circulated in the workplace. Many successful companies choose to also incorporate their commitment to equal employment in their mission and core values.
The equality policy should be prepared carefully and in consultation with workers’ organisations or other employee representatives. The nature of the equality policy and its manner of implementation vary from company to company, for example depending on the size and operational requirements of the enterprise. Smaller firms, for example, may require a lesser degree of formality. There are, however, common elements that should appear in all equality policies.
It is recommended that the equality policy be monitored regularly, preferably annually, to ensure that it is working in practice and that the actions taken to promote equality are successful. The review should be planned and implemented by a joint committee consisting of management and workers’ organisations or other employee representatives. Taking feedback from employees on the functioning and impact of the equality policy and action plan is a crucial part of monitoring progress.
The degree of formality needed will vary with the size of the organization. In a small organization an informal review to the functioning and the impacts of the policy and action plan may be enough. In a larger and more complex organization, a more formal analysis may be required.
Equality audits are effective in identifying areas of weakness and legal risk that should be addressed.
The audit exercise involves reviewing the organisation’s human resource management policies and practices. All existing policies, practices and procedures on recruitment, remuneration, entitlement to benefits, defining terms and conditions of work, access to vocational training, advancement and promotion, as well as termination of employment contracts should be reviewed and needs for amendments identified. The review of human resource management policies and practices should be conducted in consultation with workers’ organisations or other employee representatives.
Reviewing policies and practices at face value is not enough to identify all barriers to equality in the company human resource management practices. Most barriers to equal opportunity and treatment are hidden, and they can only be identified by analysing the actual makeup of the workforce.
Employers should carry out a workforce assessment to analyse statistical data on who is in the company’s workforce, in terms of e.g. sex, age, ethnicity, disability etc. This analysis can help in identifying those policies or practices that (intentionally or unintentionally) create invisible or institutional divisions among the workforce.
The manner in which the workforce assessment is carried out and the degree of formality needed will vary with the size of the organisation. In a small organization with a simple structure an informal review to assess the distribution and payment of employees may be enough. In a larger and more complex organisation, a more formal analysis may be required.
Workers’ organisations or other employee representatives should always be involved in planning and execution of the workforce assessment.
The equality policy adopted by the company needs to be backed up by concrete action to review and change company policies and practices. In order to ensure successful implementation of equality measures, it is best to formulate an action plan clearly defining the objectives, steps and timeline for implementation.
The company equality objectives should be defined on the basis of the needs and challenges identified in the equality audit. Workers’ organisations or other employee representatives should be consulted on setting the objectives and on selection of steps to achieve the objectives.
Special affirmative action measures could be defined to tackle the challenges identified in the workforce assessment.
Training managers, supervisors and staff involved in making recruitment and employment decisions on equality is pivotal for success of any equality policy. Only if managers know how to ensure equality in every human resource management related decision they make can discrimination be eliminated in the company practices.
Training should focus on providing managers with practical skills and tools for carrying out a fair recruitment process and managing a diverse work team. Managers should also be advised on how to develop the potential of team members while harnessing the differences that each team member brings.
Equality training provided to all staff and managers can also help change the way staff and managers perceive differences, encouraging them to see diversity as a source of corporate strength.
The equality policy and action plan are only effective if they are made known to all staff and managers. Staff and managers should know what is and is not acceptable behavior or practice in the workplace, and what their rights and responsibilities are. To ensure that the equality policy is effectively communicated to all employees, information on the equality policy should be included in the dossiers given to all new employees and regular updates on the policy implementation should be provided to all staff.
Employers should ensure that employees have a possibility to communicate their views, ideas and concerns on the implementation of equality measures in the company. This two-way communication can be organised through formal mechanisms (e.g. suggestion box) or informal discussions. When necessary, the communications by employees should be kept confidential. Implementation of equality measures in the company should be carried out in consultation with workers’ organisations or other employee representatives.
Equality in the workplace drives fairness in opportunity that benefits both employees and employers.
Diverse workplaces are composed of employees with a wide range of different characteristics. These can include visible differences such as gender, ethnicity, age and physical ability. Others are less visible for example: personality types, learning styles, education and socio-economic backgrounds, sexual orientation, religious and political beliefs.
We work with employers to help improve equality of job opportunities and treatment through fair and flexible HR strategies, procedures and policies.
This means ensuring fair treatment across the employee lifecycle, from job applicants during the initial recruitment stage through to existing employees, and taking positive steps to prevent against all forms of workplace discrimination, including direct and indirect discrimination, associative discrimination, harassment and victimisation.
We can help to clarify and articulate what equality means for your organisation and its workforce, which may result in identifying additional support or reasonable adjustment requirements.
Importantly, where a complaint does arise, it may also necessitate a review of policies, disciplinary procedures relating to discrimination to manage any future or further legal risk exposure.
DavidonsMorris’ team of employment solicitors and HR consultants offer support to employers with all aspects of workplace discrimination and equality.
Where there is a complaint or allegation of discrimination or inequality, we can offer support to help you manage the process fairly and in accordance with the relevant guidelines.
If tribunal proceedings are issued, we can defend and represent you through the litigation process.
We can also help to promote equality and prevent discrimination by developing and implementing measures to reduce and avoid equality and discrimination issues as well as the processes for handling issues and complaints that may arise.
Our specialists can help to:
This includes development of an equality and diversity policy defining what is acceptable and expected of individual employees and their roles in preventing discrimination and promoting equality.
We can also assist with implementation support, training for management and the wider workforce and with devising a diversity strategy that sets out guidelines and expectations for the organisation to guide behaviour and actions within the workplace.
We also have specific experience in advising employers on the exemption provisions under the Equality Act which allow employers in certain, limited circumstances to lawfully treat employees or job applicants less favourably.
Contact us for specialist advice.
Unfair treatment is when somone is treated differently and less favourably to someone else in the workplace, for example, making offensive comments that are brushed off as banter or promoting or bypassing someone for promotion.
English recognises unlawful discrimination to include direct discrimination, indirect discrimination, victimisation and harassement.
Discrimination at work can manifest in many forms, from systematic issues such as gender pay inequality to the everyday interactions between workers. Euqaliy audtis can help to identify organisational weaknesses to be addressed, while training can help managers and employees recognise potential discriminatory behaviours both of others and themselves.
Under the Equality Act 2010, there are nine protected characteristics which cannot be grounds for unfair treatment, including age discrimination, disability discrimination, sex discrimination, sexual orientation discrimination, religious discrimination, racial discrimination, marriage discrimination, pregnancy and maternity discrimination and gender reassignment discrimination.
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