Discrimination

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Discrimination

The 2010 Equality Act is the most significant piece of equality legislation for many years. It makes it easier for employers to understand their responsibilities by simplifying and streamlining the law. It also sets a new standard for those who provide public services to treat everyone with dignity and respect.

Protected Characteristics

The protected characteristics and forms of discrimination that are unlawful are:
  • Age discrimination
  • Disability discrimination
  • Gender reassignment discrimination
  • Marriage and civil partnership discrimination
  • Pregnancy and maternity discrimination
  • Race discrimination
  • Religion or belief discrimination
  • Sex discrimination
  • Sexual orientation discrimination

Discrimination law is a complex area, which can understandably create confusion for employers. Nonetheless, the key principles outlined in the EqA 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.

Prevention

Of course, if acts of discrimination can be prevented in the first place, so much the better. Employers should therefore ensure that they:

  • 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.

Training

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

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