In the UK, the Equality Act 2010 states that it is illegal for an employer to discriminate against an employee. Despite the strides that have been made to protect workers from discrimination and unfair treatment, it remains prevalent in many workplace cultures.
While there are certain instances in which it is deliberate, most cases of discrimination tend to result from unconscious bias. Whether one believes it or not, these biases that exist in all of us are just natural inclinations based on our experiences, culture or lifestyle. When our biases begin to affect not only our worldview but our decision-making process, it can become problematic.
Unsurprisingly, there have been an overwhelming number of studies that have proven the considerable impact unconscious biases can have on human capital processes such as recruitment, promotion and dismissal. The very nature of these biases being unconscious makes it difficult to know when we’re acting under influence of bias. Fortunately, legal advice is on hand from our specialist employment lawyers. Below, we’ve identified the common areas in which employers tend to trip up to help keep you right.
Illegal discrimination: what are the protected characteristics?
Under the Equality Act 2010, it’s illegal to discriminate against someone in the workplace because of a protected characteristic. This could be either one or more of the following nine factors:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
As well as the above, it is against the law to discriminate against fixed or part-time workers just as it is to treat someone differently due to their membership with a trade union. So, what does that mean in practice, and what counts as discrimination?
While abuse, verbal or physical, may be easy to pinpoint, discrimination comes in many forms which the 2010 Act further sets out. According to legislation, employers can face serious legal repercussions should they be accused of the following:
- Direct Discrimination – where a person is treated less favourably than others because of a protected characteristic
- Associative Discrimination – where someone is discriminated against due to their association with a person who possesses a protected characteristic
- Discrimination by perception – Where someone is discriminated against of the perception that they possess a protected characteristic (even when they do not)
- Indirect Discrimination – Where a particular policy puts a person with a protected characteristic at a disadvantage
- Harassment – where an individual is at the receiving end of or the witness to behaviour they deem offensive.
- Victimisation – where a person is treated badly because they have lodged or supported a complaint about the employer
Reasonable adjustments: helping your staff to do their best
Every employee is unique; their preferences, priorities and needs at work all differ depending on their age, ability and many other factors. When an employee is at a considerable disadvantage because of their disability, it’s your duty as an employer to make what’s called “reasonable adjustments” to help create an environment that allows them to thrive. If you fail to make reasonable adjustments and let them go on the premise of their performance, this will count as discrimination.
It’s also important to note that reasonable adjustments should not only be made for someone with a physical disability but also to anyone with a mental illness such as schizophrenia, bipolar disorder or depression. Creating a culture of openness will enable employees to talk about their individual symptoms and how their employer can help them to perform to their best ability at work.
There are of course, certain situations in which refusing to make reasonable adjustments is legal. If you can prove making the adjustment would be impractical, that the cost of making it would be beyond your means or that it would put you in breach of other regulations e.g. health and safety, you have the right to let your employee know. The best approach in this case is to discuss openly with them any alternative solutions.
Test of discrimination: what constitutes as discriminatory?
In many cases, discrimination takes place without the even offender having realised it. For instance, if one of two candidates was favoured in promotion due to their skill-set despite both boasting the same qualifications and experience, an employer might not consciously realise that they came to this decision because the other candidate possessed a protected characteristic. There may be several factors at play here: the successful candidate may have simply displayed more aptitude for the role. However, if an employee claims discrimination, it will fall to you to prove whether or not your actions were discriminatory.
Ultimately, it all comes back to those reasonable adjustments: if you fire an employee because of poor attendance but the poor attendance in question results from a disability, this absolutely counts as discrimination. But if you have, at several turns, made those reasonable adjustments and kept an open channel of communication in case an employee had further issues to address and yet still seen poor attendance or performance, you may want to have a chat with your employee about whether the role is right for them.
Ensuring equal treatment at all times
Even with a strict policy in place, employers should be wary of the areas in which unconscious discrimination can take place such as recruitment, promotions and dismissals. Vigilance of what affects your actions and that of others who are in a position to hire, dismiss or promote is essential in eradicating the possibility of discrimination. Instinctive decisions should always be backed up by qualitative and quantitative evidence that links exclusively to the skills needed for a particular role.
Dealing with a complaint about discrimination
Any complaint made by an employee, no matter the severity, must be fully investigated and dealt with appropriately. If the complaint is not justified and your investigation finds no actions were taken on the basis of discrimination against a protected characteristic, explain your reasons clearly to the employee and ask how they wish to proceed. If the complaint appears to be justified, you should consult with your lawyer and be ready to offer redress to resolve the issue as promptly as possible and avoid further damage to your reputation.
Dealing with complaints relating to discrimination in the workplace can often be a minefield, and employers would be wise to seek legal advice as soon as possible in these circumstances to mitigate the risk of a costly dispute. Should you need advice or representation from an experienced employment lawyer, get in touch with a member of our team today.