Diversity & Discrimination Law
Preventing and dealing with discrimination issues tend to cause a lot of difficulties for employers, particularly with so many different types of discrimination covered by statute but backed up in some cases by codes of practice and statutory guidance.
Discrimination doesn't have to be overt and it takes on many shapes and forms with many nuances – it can be inadvertent on occasions. Furthermore, as employers are vicariously liable for the discriminatory acts of their employees there are always going to be limits as to how far a responsible organisation can go in trying to make sure that its staff embrace a positive working environment and treat colleagues with dignity and respect.
With effect from 1 October the Equality Act 2010 has brought together all the various strands of discrimination under one statute and whilst on its face it doesn't really change the fundamental concepts pertinent to the different types of discrimination, doubtless it will create some areas of uncertainty which will require judicial decision before employers become more comfortable about some of the new terminology and concepts that the Equality Act contains.
Discrimination covers every aspect of the employment relationship; recruitment, employee benefits, promotion and termination.
Sex, Race and Gender Reassignment Discrimination – there aren't too many employers who would consciously discriminate against its staff on the grounds of sex or race. The biggest problem organisations face, however, is in trying to avoid workplace discrimination, particularly bullying and harassment where the employer is likely to be vicariously liable.
Investigating allegations of bullying and harassment can be incredibly challenging as complaints can either involve numerous witnesses resulting in a significant conflict of evidence or, alternatively, where evidence is uncorroborated so it becomes a case of one person's word against the other's. How do employers deal with serious allegations – does the complainant or the person accused need to be suspended pending the investigation; what does one do about reluctant witnesses and should one present investigation findings especially where is there is perhaps evidence that discrimination may have taken place?
When an existing or former member of staff serves a statutory discrimination act questionnaire (which is often used as a precursor to litigation) what is the best way to respond? More often than not the questions asked and documentation requested is extremely wide-ranging and, as a result, present real challenges in trying to respond narrowly but without being obstructive especially if the response might then be used to formulate an Employment Tribunal claim.
There has been no change under the Equality Act to the old provisions under the Sex and Race Discrimination Acts. However, there have been legislative changes to the definition of "transsexual" and, as a consequence there is no longer the requirement to be under medical supervision in order to be protected.
Disability Discrimination – a concept that is sometimes difficult to get to grips with in a workplace environment. Some employee disabilities are more obvious and can be easily addressed, others are less so leaving employers exposed if they fail to appreciate that a disability might exist. No wonder perhaps as the definition of what constitutes a disability has itself been broken down into various parts, each one being subject to a lot of case law and other guidance. Difficult judgments have to be made therefore.
The Equality Act has however given a statutory definition as the meaning of the term "substantial effect" and further guidance will be published in due course.The Equality Act has brought back into play discrimination by means of less favourable treatment, a concept that had been killed off by the decision in Malcolm. With no comparator required once again employers are going to find themselves inadvertently discriminating which will be difficult to defend unless the treatment in question can be justified.
Most disability discrimination issues arise either out of trying to dismiss an employee who has been off on long term sick or whose disability is such that the employer believes that they can't reasonably continue to be employed. These types of situations automatically trigger the legal duty to consider reasonable adjustments in the workplace for the disabled employee as a means of avoiding the potential detriment. The extent as to how far an employer needs to go in meeting its obligations is not easy to assess and a balance needs to be made between trying to accommodate the disability in question and acting in the business' best interests.
Employers therefore need to be alert to what a disability is, whether an employee has (or is likely to develop) a disability and then react accordingly. Dealing with disabled staff needs careful consultation - in some cases obtaining specialist medical advice and undertaking workplace assessments so that the employer is better equipped to be able to deal with any reasonable adjustments more effectively.
Disability discrimination also covers associative discrimination and employers need to be aware of the sensitivity in dealing with employees who may be caring for disabled relatives.
Age Discrimination – possibly the most complicated piece of legislation encountered by both employers and their advisers particularly when dealing with retirement dismissals and harmonisation of benefits. A lot of problems tend to arise in relation to indirect discrimination (with employers attempting to justify any discriminatory impact of their decisions) through the provision of service related benefits. Whilst the ability to compulsorily retire an employee who has reached retirement age has been given a reprieve by the High Court, the legislation is due to change in April 2011 when it will no longer be possible to dismiss someone simply because they have reached retirement age.
Sexual Orientation Discrimination – like sex discrimination, it is a concept that throws up similar challenges for employers. However, a further dimension is added by the fact that employees can rely on these provisions in cases where they are subjected to homophobic banter in circumstances where they are heterosexual and are known to be so by their abusers. Employers therefore have to be extremely alert with regards to day-to-day workplace issues making sure that otherwise healthy banter between staff is both respectful and measured.
The Equality Act makes no substantive changes to the old legislation.
Religious Discrimination – Employment Tribunal cases are on the increase with the focus tending to be on an individual's philosophical belief. The recent decision concerning the employee who was held to have had a philosophical belief relating to the need to cut carbon emissions perhaps helps to illustrate how far reaching this piece of legislation can be. Employers cannot therefore afford to be too dismissive when staff start expressing religious or philosophical views which might be having some form of negative impact or running against the general ethos of the business.