Discrimination in the Workplace

What does the law cover? All areas of employment are covered.

Discrimination laws cover all areas of employment including job adverts and the recruitment process, terms and conditions of work, conduct during employment and social events at work. They also cover dismissal and any work-related matters arising after employment has ended, such as giving references.

An employer will almost always be held responsible for the discriminatory actions of its employees, even if they are acting against company policy. It may also be responsible for discrimination by external bodies such as recruitment agencies if they are acting with the employer's authority.

The law protects, among others, agency workers, freelance workers, consultants, partners and directors as well as employees.

What you need to know;

• Ensuring equality
  Discrimination laws are designed to ensure equality of opportunity at work, to protect employees' dignity and to ensure that complaints can be raised without fear of reprisal.
• High compensation payments and expensive litigation
  There is no limit to the amount of compensation that can be awarded in a successful case. They can involve significant management time and legal costs, which are usually not recoverable.
• Damaging publicity and loss of staff morale
  A claim is likely to create bad publicity for an employer. It is better to avoid giving rise to a claim than to manage a crisis after a claim has been made. The whole process is also likely to damage employee morale.

Discrimination can take several forms;

Direct discrimination;

An employer directly discriminates against an employee if it treats the employee less favourably than it treats, or would treat, another person in the same or similar circumstances (the "comparator"), and does so on grounds of one of the above characteristics.

Indirect discrimination;

An employer indirectly discriminates against an employee if it applies to the employee an apparently neutral provision, criterion or practice (PCP) that puts a protected group at a particular disadvantage compared to other groups. The employee must also suffer a disadvantage as a member of that group and the employer cannot show that its PCP is objectively justified.  Protected groups are those defined by reference to any of the above characteristics (except gender reassignment, marital status, pregnancy/maternity or disability).  It is this area of the law that relates to dress codes.

Treatment of an individual will not be indirectly discriminatory if it is objectively justified.  To be justified, it must correspond to a legitimate business aim and be an appropriate and reasonably necessary way of meeting that aim. 

For example, a requirement to have excellent written English skills may indirectly discriminate against non-British job applicants, unless the employer can show that the aims of the job in question cannot reasonably be met without that requirement.

If dress codes are incompatible with particular cultural or religious mores, indirect racial or religious discrimination may occur unless the dress code is justified.

To help avoid breach of discrimination law, an employer should:

• Provide staff with employment handbooks, which may include policies on equal opportunities and harassment, setting out what constitutes acceptable behaviour and what does not.
• Provide training on equal opportunities and harassment. This may help managers, for example, to avoid inappropriate questions at interviews, or to recognise and deal with harassment at an early stage.
• Set up clear procedures for staff to raise concerns and complaints, and for dealing with complaints. Ensure discriminatory behaviour by staff is not tolerated and is dealt with through proper disciplinary measures.
• Review employment contracts, policies and employee share schemes to ensure they comply with the law.
• Make reasonable adjustments where this will alleviate any difficulties suffered by a disabled employee in the workplace.
• Accommodate workers' different cultures and religious beliefs if possible. For example, if a particular type of religious dress such as wearing a Turban has no impact in the workplace, as it may not in an office environment, this should clearly be accommodated.  Conversely if an employee requested to wear a Turban in a spray shop environment where the employee is required to wear a helmet and mask with clear air vented through it whilst working and it is impossible to wear such a mask whilst wearing a Turban, the employer is likely to be justified in refusing permission whilst the employee is working, but accommodating the workers’ cultural belief in allowing the Turban to be worn through break times.
• Try to accommodate requests for family-friendly hours by employees with childcare or other family commitments, unless refusal is justified.
• Carry out equal opportunities monitoring but do not use the forms as part of recruitment or other decision-making. Data from the forms should be aggregated and anonymised.

The law is currently set out in many different statutes and sets of regulations. The Equality Act 2010, which is likely to come into force in October 2010, is designed to consolidate the law. There will also be some significant changes to the law which NAES will cover in next months’ edition.