by Nadine De Souza

Discrimination is illegal at all stages of the employment process (i.e. advertising, vacancies, engagement of employees, promotion, training, benefits, dismissal and retirement). This protection covers more than just employees and includes the self-employed and those with a contract of service or working under an apprenticeship.

If an employee thinks that they have been discriminated against, then they can bring a claim in an employment tribunal. There is no qualifying period of service to bring a discrimination claim and no maximum award, so you must try to avoid a discrimination situation.

How to avoid a discrimination claim

An employer is liable for anything done by its employees in the course of their employment, whether or not it was done with the employer’s knowledge or approval.

However, it’s a defence if the employer can prove that it took reasonable steps to prevent an employee from doing a certain act. If the employer wishes to rely on this defence, it must be shown that positive steps have been taken to address the possibility of discrimination occurring in the workplace.

The best way to avoid discrimination is to make sure that it doesn’t happen in the first place. Employers should have an equal opportunities policy. An equal opportunities policy is also part of Lawpack’s Staff Handbook.

Employees must be shown this policy and educated about different types of discrimination and warned of its consequences. Employees should be told that all acts of discrimination will be taken very seriously by the employer and will be considered gross misconduct.

Types of discrimination

It’s against the law to treat someone less favourably than someone else because of a personal characteristic, such as age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

There are different types of discrimination including direct discrimination, indirect discrimination, harassment and victimisation. Some examples of discrimination are introducing policies that discriminate against workers (e.g. a benefit for married employees but not for those in a civil partnership, or failing to make reasonable adjustments for a disabled employee).

Dealing with a discrimination claim

Complaints of discrimination can be very disruptive to the workplace and must be dealt with very carefully. If an employee complains of discrimination, consider whether an informal approach to the alleged discriminator would be appropriate; for example, if it’s a less serious complaint or the first instance of discrimination.

Consider whether the person complaining of discrimination wants an informal approach or would prefer more formal action to be taken. If an informal warning is appropriate, the alleged discriminator should be consulted to explain that the conduct is upsetting the employee, that it’s considered discrimination and must not continue.

The employee should also be warned that the matter will be kept under review. The employee must be shown the policy which is in place and warned that if matters don’t improve, disciplinary action will be taken.

The person who has complained should be kept informed of the warning given and told to inform the employer if they have any further complaints against the alleged discriminator.

Where an informal approach is inappropriate or if the complainant wants formal action to be taken, the disciplinary procedure should be followed in the following way:

  • Ask the victim for a full statement
  • Suspend the alleged discriminator pending an investigation
  • Take statements from all staff who can provide evidence about the alleged discrimination
  • Interview the alleged discriminator and ask them to provide a statement
  • If there is any substance to or doubt about the discrimination, then you will need to hold a disciplinary hearing to give the alleged discriminator the chance to answer the complaint or justify or excuse their conduct
  • If you decide that the discrimination did take place, you have to consider a penalty. If it’s a serious case, then the penalty could well be dismissal. If the discrimination is less serious, then a final written warning should be enough.

Exceptions to the law against discrimination

There are a number of areas where exceptions to the law against discrimination exist. The main ones are:

  • Positive action: Employers are entitled to take voluntary positive action if they think that employees or job applicants who share a particular characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is disproportionately low.
  • Genuine occupational requirement: In limited circumstances it may be lawful for an employer to discriminate if it’s a genuine occupational requirement for the jobholder to have a particular characteristic (e.g. a charity that helps female victims of domestic violence is advertising for a counsellor and they consider it to be a genuine occupational requirement for the jobholder to be female).

Help from Lawpack

This article has been adapted from Lawpack’s Employment Law Made Easy. If you want more in-depth information – from an employment lawyer – about all aspects of employment law, then read our guide Employment Law Made Easy. Packed with tips and expert advice on complying with employment legislation.

Why not download our Equal Opportunities Policy, so you have a solicitor-approved company policy in place?

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Published on: June 30, 2014