The risks connected with discrimination claims under the Equality Act 2010 are vital for employers to understand – with no minimum service requirements and uncapped compensation, it is important that employers get this right.
At Stephens Scown, we believe in helping businesses build fair, inclusive workplaces, not just to avoid claims, but because it is the right thing to do. Claims under the Equality Act 2010 can arise at any stage of the employment relationship, from early recruitment stages all the way through to dismissal – and sometimes beyond. It is therefore important to understand how claims arise as early awareness is key to prevention.
The risk of getting this wrong can potentially be vast, as not only could there be uncapped compensatory awards if a Tribunal finds that there has been discrimination, but there are also serious reputational risks to your business due to the public nature of Tribunal claims. On a more personal level the business also risks damaging the morale of its workforce. Taking a proactive, ethical approach helps to protect both your people and your business.
So what is workplace discrimination?
There are a number of types of claims under the Equality Act 2010 that protect employees, workers and job applicants from discriminatory treatment:
- Direct discrimination treating someone less favourably because of a protected characteristic.
- Indirect discrimination applying policies or procedures that put those with a protected characteristic at a disadvantage without having a clear objective justification for doing so.
- Discrimination arising from disability less favourable treatment due to something that arises from disability.
- Failure to make reasonable adjustments employers are required to make reasonable adjustments to avoid any substantial disadvantage that someone may experience because of a disability.
- Harassment unwanted conduct related to a protected characteristic which creates a hostile or offensive environment.
- Victimisation treating someone unfairly due to them having made a complaint about discrimination or being involved in a complaint in any way.
These potential claims include circumstances where individuals are associated with those who have protected characteristics (such as a disabled child) or where they are perceived to have a protected characteristic (even though they don’t).
Given the different types of claims listed above, it is important to remember that it is not just ‘overt’ acts of discrimination to be wary of, but also more discrete and potentially ‘covert’ behaviours, or more subtle and unconscious biases that could be seen as discriminatory.
It is also important to be alert to the nine key protected characteristics to which the above claims apply:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
Keeping alert to these claims is vital as even well-intentioned decisions might inadvertently result in liability for the business if not handled appropriately.
Practical tips to minimise the risk of a claim
Given that discrimination claims prevent a very real risk to businesses, it is vital that as a business, steps are taken to ensure that claims do not arise. This is true not only because of the clear financial risks, but also because it will be important for businesses to aim to act ethically and treat staff well, as doing so may even boost the business by improving retention levels and morale within teams. Taking steps to ensure equality is embedded in your culture can reduce legal risk and also help teams to thrive.
So what can be done to foster a discrimination free workplace?
- Review recruitment and hiring processes to try and reduce any unconscious bias.
- Having robust policies and procedures in place, such as anti-discrimination policies, and equality and diversity policies.
- Carry out regular training for both management and staff, to ensure that the policies are being understood and implemented appropriately. This is particularly important in light of the proactive obligation on all employers to take steps to prevent sexual harassment in the workplace.
- Carrying out fair and transparent processes – this applies to all types of process within the business, whether that be a grievance, disciplinary, performance management, or redundancies.
- Where complaints are raised, ensure that they are dealt with at an appropriate level and considered thoroughly. If shortcomings are identified, these should be rectified as soon as reasonably practicable.
- Keep comprehensive written records. This can help to avoid disputes being prolonged due to the availability of clear and comprehensive notes to demonstrate the rationale behind decision-making and to show evidence of compliance in the event of a claim.
- Ensuring that employees with a potential disability are supported and exploring in depth any reasonable adjustments that can help to support them in the workplace.
- Aim to foster and encourage an inclusive working environment whereby employees feel they can speak freely and report problematic behaviours at an early stage without fear of repercussions.
Taking these steps reflects a commitment not just to compliance, but to creating a respectful and supportive workplace, a value that benefits both employers and employees.
What are the longer-term considerations?
Expectations of workplace culture and emphasis on equality are always evolving. Employers are increasingly expected to take a proactive and ethical stance on inclusion and diversity, not simply due to legal obligations but due to broader societal values.
- Societal emphasis on inclusive spaces and greater awareness of potentially discriminatory treatment.
- Benefits for businesses as being an inclusive and well-regarded business in this area could help to give the business a boost and help it grow.
- Potentially improved recruitment processes as ethical businesses may be better placed to attract and retain talent.
- Equality (Race and Disability) Bill in the pipeline may further expand employer obligations.
Conclusion
Discrimination claims can be complex, disruptive and costly, but with the right steps in place and the right support, they can be avoidable.
We encourage all employers to take a proactive approach not only to reduce the clear legal risks, but also to promote a fair and inclusive workplace. Employees are vital in the operation of a business and so their value and experience in the workplace should not be discounted.
If you are unsure whether your business is taking the right steps, or if you are dealing with a potential issue, seeking advice at an early stage can make all the difference in setting the future course in a positive light.
Our Employment team regularly supports with everything from policy reviews and day to day advice on specific issues, all the way to settling claims or defending claims in the Employment Tribunal. If you would like to discuss how we can help, please don’t hesitate to get in touch by calling us on 0345 450 5558.