Discrimination law is a complex area, which can understandably create confusion for employers. Nonetheless, the key principles outlined in the Equality Act 2010, that an employer should not discriminate on the basis of the protected characteristics, are neither difficult to comprehend nor to implement and enforce.
In the majority (if not all) cases of discrimination it will be an individual, or more than one, who discriminates. It can include discrimination through not hiring an applicant despite their suitable qualifications for the role, purposely selecting an employee on the basis of a protected characteristic for redundancy, failing to promote because of pre-conceptions of likely behaviour, through to outright harassment of a mental or even a physical nature.
Understand their key obligations
Adopt a straightforward, easy to understand policy
Properly communicate this to all employees (and workers)
Implement this alongside (and reinforce with) proper training
Communicate the message regularly
Enforce the policy
There is a wealth of information available to employers, but a sensible starting point for guidance is the ACAS website, which includes a simple guide, and for more detailed guidance, the EHRC website.
Proper training is key not just to the implementation and enforcement of policy (reducing the likelihood of discriminatory acts in the first instance), but also, if discrimination has taken place, to an employer being able to demonstrate it took ‘reasonable steps’ to prevent the discrimination (and thus avoiding liability for that discrimination).
The key steps to prevention mirror closely the key actions required of an employer in demonstrating it has taken reasonable steps to avoid discrimination occurring.
The courts have made it clear that those reasonable steps will normally include:
Having and implementing an equal opportunities policy and an anti-harassment and bullying policy, and reviewing those policies as appropriate
Making all employees aware of the policies and their implications
Training managers and supervisors in equal opportunities and harassment issues
Taking steps to deal effectively with complaints, including taking appropriate disciplinary action
Our discrimination laws may be complicated, but employers can and should be implementing the above to:
Deter and prevent unfair and unlawful practices which give rise to claims, impact the workplace and can have serious adverse effects on individual victims
Demonstrate they are taking ‘all reasonable steps’ to prevent such discrimination
Avoid claims which are damaging, time consuming and (unlike unfair dismissal, for example) are not subject to a statutory cap on compensation