What do you need to know about discrimination as an employer?

Discrimination: The Basics

The law regarding discrimination and protection for employees can seem complicated and at times it can be difficult to understand (which is why we always recommend you get help from an expert 😉). I have however tried to condense this article into the key points that employers need to understand.

1. Be nice

This is not a legal point! It is however fundamental to being a good employer and avoiding a claim in the Employment Tribunal. If you treat your staff well, fairly and equally regardless of your legal obligations you will a) have a happy, more productive workforce and b) lower your risk of a claim under the Equality Act.

Simple enough, so why do so many employers get it so wrong?

2. Equality Act 2010

Forget the Sex Discrimination Act 1975 and the Race Relations Act 1976, they are old news. In 2010 all of the previous discrimination legislation was pulled together into one Act. The Equality Act is the go-to legislation in this area.

3. Protected Characteristics

The Equality Act sets out the ‘characteristics’ which have protection from discrimination. These are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation

This means that in order for an employee to make a claim that they have been the victim of discrimination (under the Equality Act), they must have one of these characteristics.

Therefore, an employee cannot claim discrimination on any old basis, however it does not stop client’s telling me that ‘my mate down the pub told them it was discrimination’.

General inequality among staff is therefore not unlawful, as long as the reason is not because of a protected characteristic. It is however terrible business practice (see point 1 above) and you probably won’t keep good staff for long. Studies have shown that feelings of unfairness, inequality and inconsistency in treatment among staff are one of the top reasons for employees being unhappy at work. If you think that this may be a problem in your organisation a chat with me is probably long overdue!

4. Religion or belief

Of the protected characteristics listed this one and Disability (see below) are the ones that are most likely to throw up difficulty for you in identifying if someone has a ‘protected characteristic of not’.

There have been a number of cases about what constitutes a ‘religion’ and what is a ‘belief’ for the purposes of the Equality Act.

Recently there has been a decision in the Employment Appeal Tribunal that beliefs about climate change amounted to a philosophical belief and therefore the employee qualified for protection from discrimination.

There have also been cases in the Employment Tribunal about vegetarianism and veganism, and whilst they are only at the first level (Employment Tribunal) they may be appealed for a decision on whether either belief amounts to a philosophical belief.

This is why it is important to be fair and reasonable to your staff, and why you should take advice from a specialist if you are in any doubt – preferably before you take any action!

5. Disability

This is the second characteristic that causes problems for employers as it can be difficult to a) know if someone has a medical condition in the first place and b) to know if the condition qualifies as a disability.

As with religion and belief, there have been a number of cases on this area. In short what you need to know is: a) if they have a physical or mental impairment and b) if the impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.

If all three elements (impairment, long term and substantial impact) are present then they will likely fulfil the requirements of Section 6 of the Equality Act 2010 and have a disability.

It is important to note that it includes mental impairments and employees may have an ‘invisible’ disability.

Where you are unsure, you should ask the employee for more information about their condition and if necessary, seek medical advice.

6. Direct Discrimination

Arises where, because of a protected characteristic someone is treated less favourably than another or others.

7. Indirect Discrimination

This is where unintentionally (normally) you introduce a rule or policy or clause that when put into practice puts a group at a disadvantage because of their protected characteristic.

For example: if you introduce a policy that no-one can work part-time. This could disadvantage your female employees, as traditionally they are more likely to be the ones working part time.

Unlike direct discrimination, if you can show that there is objective justification for the rule or policy, as long as it is a proportionate means of achieving a legitimate aim you will not have a ruling of indirect discrimination against you.

8. General Harassment

This arises where someone engages in unwanted conduct, related to a protected characteristic, which has the purpose or effect of:

• Violating a person’s dignity, or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee.

Harassment can take many forms and even a one-off incident can amount to harassment. It is therefore important that your staff understand the boundaries within which they can behave and treat colleagues. Having good policies and procedures in place and training staff can help to prevent this from occurring in your organisation but primarily it is about the culture you create and how you respond to issues when they arise.

9. Sexual Harassment

The definition of sexual harassment is the same as general harassment except that instead of being related to a protected characteristic if it is of a sexual nature it will be harassment.

In addition to protection from conduct of a sexual nature the law also provides protection for employees from less favourable treatment because of a rejection or submission to harassment of a sexual nature or related to sex or gender reassignment.

10. Victimisation

This protects employees from detrimental treatment if they speak out or make a complaint about discrimination. This includes protection for those who make a claim or who say that they may make a claim or who assist or help others who are making a claim.

It ensures that employees are not afraid to speak out for fear of reprisals.

11. Discrimination arising from disability – disability only

This is unique to disability and in short, provides an additional level of protection for employees who are disabled.

It means that an employee has protection from being treated unfavourably because of something arising in consequence of the employee’s disability.

For example, if an employee is dismissed because they have to take time off to attend medical appointments which are necessary because of their disability.

As with indirect discrimination you may have a defence to this if you can show it is a proportionate means of achieving a legitimate aim.

12. Failure to make reasonable adjustments – disability only

If an employee is at a disadvantage in the workplace or in fulfilling their job role because of their disability, then you have a duty to make reasonable adjustments to premises or working practices to assist them.

For example, if an employee is partially sighted and needs a special software on their computer to enable them to fulfil their job role at the same speed as their colleagues then an employer would (in most cases) be liable under the Equality Act for failing to make a reasonable adjustment.

To conclude

As I stated above, this is a complicated area of law and it can be difficult to get your head round the various protected characteristics and types of discrimination, but the consequences of getting to wrong can be costly for your business from a financial and reputational perspective.

There are 4 simple ways to avoid this and make your life easier:

1. Be nice and create a fair and reasonable working environment;
2. Have good policies and procedures in place setting out your commitment to fairness and equality;
3. Train staff on the Equality Act, their obligations and your requirements – ideally all staff should have some form of training but at the very least your managers;
4. Seek advice from a specialist.

Fortunately, we can help you with all of these points!!!

My passion is to help employers and business owners to be the best employers they can and therefore if you want to be the best employer in your industry drop me an email to arrange a no obligation discussion and quote. Email: alison@realemploymentlawadvice.co.uk

This article was written by Alison Colley, Solicitor and Founder of Real Employment Law Advice.

 Don’t forget getting advice from a Solicitor does not have to be complicated or costly!