No-one likes a claim being brought against them for discrimination. It takes time and resources to deal with, and can cause serious damage to a firm's reputation. Taking a few sensible precautions can reduce the chances of a claim, and significantly reduce the chances of any claim being successful.
Areas of Potential Discrimination
In general terms it is unlawful to discriminate against any person in employment, or in the provision of goods or services, on the grounds of race, sex, sexual orientation, gender re-assignment, pregnancy or maternity, disability or belief. It is unlawful to discriminate against any person on the grounds of age in terms of employment.
These areas are very wide. To avoid having potential problems all employers should ensure that their staff are aware of these prohibitions and the need to treat all people equally. It is good practice for firms to have a written equal opportunities policy, which they must ensure is implemented and of which staff are aware.
Please bear in mind all of the following points on discrimination:
- It is no defence to claim lack of intent.
- It is not necessary for someone to act with bad faith for a matter to amount to discrimination.
- Jokes and banter may amount to discrimination. If they are targeted at someone because of their race or sex then this will be unlawful.
- Positive as well as negative discrimination is prohibited.
- Positive action is permitted. The difference between the two is that positive action is encouraging applications from a particular group, whereas positive discrimination is appointing someone on the basis of their membership of a particular group.
- Discrimination can be proved on inferences alone. Direct evidence of discrimination is often hard to find, and so a tribunal will look at all the facts and circumstances.
- Employing good practice usually protects against claims.
- The Equality Act 2010 introduces new concepts of 'associative discrimination' (direct discrimination against someone because they associate with someone with a protected characteristic) and 'discrimination by perception' (direct discrimination because others think they possess a protected characteristic)
Genuine Occupational Requirements
Sometimes it is necessary for a person of a particular sex to undertake a post, or to possess particular physical attributes that mean some people with disabilities would not be able to undertake the work. If this is the case then no offence is committed by restricting the availability of the job to members of that sex etc. These exceptions are however very limited and it will always be for the employer to justify them.
- It will never be lawful to restrict recruitment to men because women cannot manage the physical tasks involved;
- It will never be lawful to restrict a job to one sex because, for example, they may need to go into dressing rooms with customers of the opposite sex. It is unlikely that all the staff would need to do this at one time, and so that will not be a genuine requirement.
- Just because a particular role was in the past the province of only one sex does not mean that it will be in the future.
- It will never be lawful to discriminate against someone on the grounds of their disability without first considering whether reasonable adjustments could be made to accommodate them.
Discriminating against a person on the grounds of age in employment is unlawful. An advert therefore which requires someone to be of a certain minimum (or maximum) age would not be lawful. However it may be a genuine occupational qualification for someone to possess a certain level of experience. For instance, in a senior position it may well be the case that only candidates with substantial experience of the area of work would be considered. This would be lawful, but the advert should always specify the experience required rather than the age which people would usually need to have got to before acquiring that experience.
Recruitment, Promotion and Dismissal
When recruiting new staff consider firstly what requirements really exist for the job. Measure all applicants objectively against those requirements. Do not draw up separate lists of male or female, white or BME, able bodied or disabled candidates. Doing this could create an impression of discrimination and serves no useful purpose.
When interviewing avoid asking personal questions not related to the job. Asking questions about things such as wedding plans or intention to have children could be seen as displaying a bias against women applicants, and could leave the firm open to a charge of discrimination.
The only exception to this is to ask a person with disabilities what adjustments may have to be made to enable them to do the job properly. If these adjustments are 'reasonable' then they must not be allowed to affect the recruitment decision. If however they are unreasonable then they are a factor which may be taken into account. What is reasonable will depend on a number of factors, such as the cost, inconvenience to other staff and clients, numbers of people who may benefit from.
When deciding who to appoint, and indeed when deciding which applicants to select for interview, best practice is as far as possible to have the process done by more than one person. This guards against one person's prejudices controlling the process. Always select and appoint with reference to the job criteria drawn up at the start of the process and always keep a written record of why you selected the person that you did rather than any other candidate. If these records are made at the time then they are far more likely to be accepted by an Employment Tribunal than something only drawn up later once a complaint had been made.
The same level of objectivity needs to be brought into play when considering who to promote at work. There should be an open procedure where everyone can apply, and it should be based around the job description and skills needed to perform it well. If promotion is based around progress in previous appraisals then ensure that the system used in those appraisals is fair and robust, and that no-one is either directly or indirectly discriminated against. Denying people the opportunity to be promoted because of e.g. race, sex, age or disability is unlawful.
Finally in this section, it is essential to ensure that objectively justifiable criteria are used when dismissing people. If selecting for redundancy always consider whether the process you use is fair. For instance, if you employ a number of full time workers who are predominantly male and a number of part time workers who are predominantly female then deciding to make all redundancies amongst the part time staff may have the effect of being indirectly discriminatory. If the method for selecting will inevitably mean that a particular sex or group is disproportionately affected then there is a significant risk that this will be held to be discrimination.
Provision of Services
As well as ensuring that staff and potential staff do not suffer from discrimination, firms providing services to the public must ensure that customers are not discriminated against. Refusing to serve someone because of their sex or race is discriminatory, as is refusing to serve someone because of a disability. All of these are obvious, but the bigger problem for many firms is in ensuring that they do not indirectly discriminate against people, particularly on the grounds of disability.
Service providers again have to consider the question of making reasonable adjustments for members of the public using their premises. If, for instance, a shop has a doorway with steps leading up to it so that it cannot be accessed by someone with a wheelchair this would be discriminatory. A reasonable adjustment would be the provision of a ramp. A firm is only required to make reasonable adjustments. This is a matter of fact and degree. It is important to recognise that adjustments for one group of people with disabilities may be of no use for a different group, and so arrangements may need to be considered for them as well. However the law recognises that budgets are finite and provided that resources have been used appropriately to make adjustments then the firm will usually have done all that is required.
If you would like advice on your equality and diversity policy or in relation to any complaint made about your procedures, then our experienced team of employment lawyers would be pleased to help you.
Go to the following link for the Acas Guidance for Employers on the 2010 Equality Act: http://www.acas.org.uk/media/pdf/8/a/Equality-Act-2010-guide-for-employers.pdf
For information of users: This material is published for the information of clients. It provides only an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice. Therefore no responsibility for loss occasioned by any person acting or refraining from action as a result of the material can be accepted by the authors or the firm.