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Your Guide to Discrimination in the Workplace and the Law

3 March 2021

Create a working environment that’s not free from discrimination, to minimise the risk of legal action against your business and create a happier workforce.

The dictionary definition of discrimination is “the unjust or prejudicial treatment of different categories of people”. Despite many employers taking steps to support their staff and create internal cultures that promote equality, workplace discrimination is a still problem, accounting for 20% of all tribunal claims in the last year.

From inadequate company policies and procedures to personal differences and miscommunications, there can be a variety of reasons why discrimination might arise in a work environment. If ignored, the effects of discrimination can be significant – both financially and for a business’ reputation.

Discrimination can also hugely demoralise your team and affect overall productivity. It can affect business too – for example, a report in October 2016 by The Equality and Human Rights Commission found that British businesses are losing nearly £280m per year as a result of women being forced out of their jobs by pregnancy and maternity discrimination. 

With all this in mind, it’s important to ensure that your company policies are clearly defined and communicated, and that you’ve trained your staff in best practices. By creating a working environment that’s not only free from discrimination, you’ll minimise the risk of legal action against your business and create a happier workforce. 

Type of Discrimination in the Workplace

Whilst the word ‘discrimination’ can often be casually used in day-to-day rhetoric, ‘unlawful discrimation’ refers to when unfair treatment arises as a result of specific characteristics, known legally as ‘protected characteristics’. The UK has nine protected characteristics, which are set out in the Equality Act 2010 – these are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

There are then four defined types of discrimination under the Equality Act, which are direct and indirect discrimination, harassment, and victimisation. Direct discrimination is when a person is treated unfairly because they are associated with a protected characteristic (intentionally or unintentionally). 

Indirect discrimination is when a ‘provision, criterion or practice’ (‘PCP’) is applied in the same way to a group of people, but disadvantages some people who share a protected characteristic. The Equality Act does not define what a ‘PCP’ is, but Acas states that “the term is most likely to include an employer’s policies, procedures, requirements, rules and arrangements, even if informal, and whether written down or not”.

Harassment refers to ‘unwanted conduct’ related to a protected characteristic. It might be to intimidate an employee or colleague, or degrade, humiliate or offend them. This may arise in a number of forms, from outright bullying to more subtle gossip, inappropriate questions, vicious gossip or exclusion. Attempting to justify the behaviour in the name of joking around or ‘banter’ is not excusable. When it comes to judging a harassment situation, it is more important to understand how it made the victim feel than how the harasser intended their behaviour to come across.

Victimisation happens when an employee suffers due to a complaint they’ve raised in connection with the Equality Act. For example, they may have made an allegation of discrimination and are now suffering from being labelled a ‘troublemaker’, being ignored, or being denied training or a promotion. 

What is the Law Around Discrimination in the Workplace?

Both employers and employees can find themselves liable for acts of discrimination which might occur in relation to work. Therefore, whilst claims can be made against employers by their employees, claims can also be brought personally against individuals and colleagues. 

Furthermore, employers may find themselves liable for the unlawful behaviour of their employees. However, this risk can be minimised if the employer can demonstrate they took all necessary precautions to prevent discrimination.

Occasionally, and only for certain protected characteristics, an employer might be able to justify their behaviour in regards to direct and indirect discrimination if they can show that their treatment was appropriate and necessary (which normally requires that it is linked to the overall business objectives). Justifications may vary from business to business – for example, it is likely to be easier for a larger firm to provide flexible working hours for women with childcare responsibilities.

Preventing Discrimination in the Workplace 

Employers need to have appropriate policies in place to ensure that discrimination doesn’t occur in the first place. In the early stages, this begins with recruitment – ensuring that the hiring process is a fair and open process that is free from bias. Employers should also consider training staff to avoid unconscious bias in selection processes, and anonymising CVs and application forms.

Employee handbooks should be fully updated with all equality and diversity policies, with training for all staff on the acceptable way to communicate and behave with one another in the workplace. 

Employers should also make sure that their grievance and disciplinary procedures are clear, and consistently applied when dealing with any harassment and discrimation allegations.

The Importance of Diversity in the Workplace

Diversity in the workplace should not be viewed as a tick-box exercise, simply because it adheres to the legal requirements of the Equality Act – it adds unparalleled value to the working environment. 

A diverse workforce can encourage new ways of thinking, expand your customer base and help grow a business. In addition, skills and knowledge can be shared – particularly in a work environment. This is especially true for employees within multi-generational workplaces.

The reality is that law and legislation alone is not enough to get rid of discrimination in the workplace – behaviours and practices at work must change in order to ensure successful diversity. If we all make these efforts from a grass roots level and right up incorporating changes into business strategies, it will affect the diverse talent pool of the future. 

How Loch Associates Group Can Help

At Loch, we believe that preventing discrimination in the first place is better for business than having to deal with the consequences. However, we’re aware that even with the best intentions, and strategies in place, allegations of discrimination may still arise.

We can help you with a number of solutions, including defining your policies and procedures,  investigating and managing allegations, diversity and inclusion training, and defending claims in the Employment Tribunal. For more information, visit: 

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