With so many different types of workplace discrimination (e.g. disability, age, sex, religion, sexual orientation) covered by the Equality Act 2010, which is supplemented by codes of practice and statutory guidance, getting to grips with the nuances of discrimination is challenging.
Discrimination comes in many guises and often unlawful acts are not overt. Sometimes the treatment complained of is quite subtle, and aggrieved employees find inappropriate behaviour difficult to articulate.
Even though employers are vicariously liable for the discriminatory acts of their employees, there are limits to the precautionary steps an organisation can take to ensure its workforce embraces a positive working environment by treating their colleagues with dignity and respect.
Workplace discrimination covers every aspect of an employment relationship: recruitment, employee benefits, promotion, and termination. Importantly however, the legislation extends beyond employees and includes job applicants, agency and contract workers among others.
Claimants can bring proceedings against both their employer and the offender – a colleague, or a manager for example. Tactically, this puts added pressure on the employer as decisions need to be taken about whether to jointly defend the claim or advise the employee to be represented separately.
Defences to Workplace Discrimination Claims
In Employment Tribunal proceedings an employer can avoid liability if it can demonstrate that it took all reasonable steps to prevent the discriminator (usually an employee) from committing the discriminatory act in question. To do so, an employer needs to have comprehensive equal opportunities and anti-bullying policies in place. Furthermore, it is important to have evidence of managers whom have been trained in dealing with allegations; make employees aware of any policies; highlighting in clear terms the consequences of discriminatory behaviour, and having a track record of dealing with historical complaints, are more likely to help employers avoid liability altogether.