AbleToTrain by Willing & Able

HOW DISCRIMINATION CLAIMS BE AVOIDED?



It seems weird that so many businesses still struggle to comprehend and prevent workplace prejudice at a time when there is such a strong focus on equality, diversity, and the prevention of unfair discrimination.

The law in this field is based on the Equality Act 2010 (EqA 2010), which enforced the concept of equal treatment and brought together our different anti-discrimination statutes. It outlaws direct and indirect discrimination, harassment, and victimization in the workplace on the basis of any of the ‘protected characteristics’ it lists (and which protections incidentally also apply in the provision of goods, facilities and services, the exercise of public functions, premises, education and the membership of clubs and associations).



Characteristics that are protected

The following are the many protected qualities, as well as the types of discrimination that are illegal:

  • Discrimination based on age

  • Discrimination based on disability

  • Discrimination based on gender reassignment

  • Discrimination against marriage and civil partnerships

  • Discrimination based on pregnancy and maternity

  • Discrimination based on race

  • Discrimination based on religion or belief

  • Discrimination based on gender

  • Discrimination based on sexual orientation

Employers may be confused by discrimination law because it is a complicated issue. However, the main concepts described in the EqA 2010, namely that an employer shall not discriminate on the basis of protected characteristics, are not difficult to understand, implement, or enforce. Individuals, or groups of individuals, will discriminate in the vast majority (if not all) of situations of discrimination. It can range from not hiring an applicant despite their suitability for the job, to purposefully selecting an employee for redundancy on the basis of a protected characteristic, to failing to promote due to preconceived notions of likely behavior, to outright harassment of a mental or even physical nature.

The employer, as well as the individual, is liable for certain acts and behaviors (on a vicarious basis). Under s109(4) of the EqA 2010, an employer can claim a defence if it can establish that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or something similar.



Prevention

Of course, the better it is if discrimination can be avoided in the first place. As a result, employers must ensure that they:

  • Recognize their primary responsibilities.

  • Adopt a policy that is simple and easy to comprehend.

  • Ensure that all employees are aware of this (and workers).

  • This should be done in conjunction with (and reinforced by) adequate training.

  • Regularly communicate the message

  • Apply the policy.

Employers have access to a lot of information, but the ACAS website, which contains a brief overview, and the EHRC website, for more thorough guidelines, are good places to start.



Training

Proper training is essential not just for policy implementation and enforcement (which reduces the chance of discriminatory acts in the first place), but also for an employer to be able to demonstrate it took “reasonable precautions” to prevent discrimination if it has occurred (and thus avoiding liability for that discrimination).

The primary stages to prevention are quite similar to the efforts that an employer must do to demonstrate that it has taken reasonable steps to avoid discrimination.

The courts have made it plain that reasonable steps in most cases will include:

  • Having and enforcing an equal opportunity policy as well as an anti-harassment and bullying policy, as well as periodically reviewing those policies.

  • Making sure that all employees are aware of the policies and how they affect them.

  • Equal opportunity and harassment training for managers and supervisors.

  • Taking steps to effectively deal with complaints, including disciplinary action if necessary.

Although our anti-discrimination laws are complex, businesses can and should use the following guidelines to:

  • Discourage and prevent unfair and illegal acts that lead to claims, have an influence on the workplace, and can have major negative consequences for individual victims.

  • Demonstrate that they are taking “all reasonable precautions” to avoid discrimination.

  • Avoid claims that are costly, time-consuming, and do not have a statutory compensation cap (unlike unjust dismissal, for example).