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The ‘D’ word

Discrimination is often a feared word amongst employers. Not only are the consequences of an employment tribunal costly, but also the reputation of the company in question can be severely damaged. Vesna Siljanovska asks the employment experts to explain the plain facts on discrimination and give practical advice on promoting and practising equality and diversity
 
The bare bones
An employer must not discriminate against an employee on the grounds of “sex, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, race, disability, sexual orientation, religion or belief, or age,” summarises Paula Lawn, Associate at Leathes Prior.

To break this down further, discrimination can exist in two forms: direct and indirect. Paula explains: “Direct discrimination is when an employer treats employee A less favourably than it treats, or would treat, employee B in the same or similar circumstances [and] indirect discrimination occurs when an employer applies a provision, criterion or practice across its workforce, which places certain employees at a particular disadvantage.”

Paula demonstrates with an employer requiring a woman with childcare responsibilities to work full-time: “This requirement has a disproportionate impact on women, since women in society as a whole bear a greater part of domestic and childcare responsibilities than men and are more likely to want (or need) to work part-time. Unless the employer can objectively justify the need for a full-time worker to do the job, the requirement would be indirectly discriminatory.”

Affected areas
The laws of discrimination apply to all areas of work, including advertising a job to providing a work reference. Eve Clennell, Chartered MCIPD Bsc (Hons) and Principal Consultant at Eden HR Consulting Ltd advises that “you should not state ‘x years worth of experience’ or use the words ‘mature’ or ‘young’ in job adverts because of age discrimination [and] job descriptions, person specifications and application forms shouldn’t ask candidates to give unnecessary personal details or state requirements that aren’t directly related to the job, such as country of birth or sexual orientation.”

With regards to pay review, benefits and workplace conditions, Eve adds: “Any person doing the same work as someone else has the right to be rewarded in the same way as they are. This doesn’t just include basic wages, but the full range of benefits. This also applies to benefits such as access to training and career development.”

It is important to understand “an employer will almost always be held responsible for the discriminatory acts of its employees, even if they are acting against company policy,” says Paula. Franchisors should be aware “if the franchisee discriminates against an employee the liability for the discrimination will not pass to the franchisor.” However, Paula further elaborates: “If the franchisee is instructed to follow, say, a recruitment practice and that practice is found to be discriminatory and the employee sues the franchisee, the franchisee may well have a claim against the franchisor for either breach of contract under the Franchise Agreement or negligence, ie, insisting the franchisee follows an unlawful course of conduct.”  

Found guilty?
If a workplace discrimination claim ends up in court, Paula illustrates, through two case studies, the level of compensation that can be awarded:

•    Case study one: A disabled employee received a substantial six figure sum by reason of her employer's failure to make simple, reasonable and inexpensive adjustments at her place of work.

•    Case study two: A female employee, whose employer refused to continue with her training after she fell pregnant, settled in the sum of £57,000. The employee in question was only employed for seven months.

Both financially and emotionally, the cost of a workplace discrimination claim is high.  Inevitably, the repercussions onto the business in question are equally damaging, as Eve explains: “Low employee morale, bad publicity and high staff turnover, difficulty in recruiting new franchisees and in keeping up the morale of existing franchisees in your network when they get wind of the bad news.”

Paula agrees and reiterates: “Prevention is always better than cure.”

Peter Abraham, Managing Director of HR4UK.com, argues that many cases need not end up in court if better dispute resolution procedures were implemented. Peter’s view is: “in practically every situation employment law requires any person wishing to file a claim at an employment tribunal to have exhausted the dispute resolution procedures on offer first. The reason for the continuing high number of tribunal claims is that very few employers have anything more than the very basic procedure of ‘if you have a complaint put it in writing and your employer will consider it’.” More efficient and accurate management of personnel information, according to Peter, would result in fewer cases ending up in court.

Equality and diversity
A great place to start is to consider your current position and review what you are doing to promote and practise equal opportunities. For example, Eve suggests “carrying out an equality audit or equal pay review of your organisation, checking that you use clear and justifiable criteria for job descriptions, pay reviews that are demonstrably objective and job-related.”

Benjamin Smart, Regional Manager at Business Link, reinforces the importance of an equality and diversity policy: “A developing and progressive business would need to produce some good practice material covering equality and diversity whilst accepting that a good business within [for example] the London market must demonstrate an acceptance of the fact that the London market is culturally diverse and rich in talent.” Eve echoes this point and adds that not only would this be an official commitment to rights on equality, but “it can also help win new customers, especially from the public sector, and it makes you stand out from other franchisors.”

Paula supports this view, however warns: “Such a policy will be useless without the relevant training on its implementation and clear instruction to staff at all levels that discrimination will not be tolerated.”

Clearly, training is essential in helping your employees understand how unfair discrimination occurs and how it can be avoided. Eve explains: “If your franchisees are going to employ people then they need to be equally as well-informed as you are.”

This is reiterated by Benjamin, who states: "Failure to recognise the value of a diverse work force could result in the business losing its market share and therefore failing to grow. Equality is about fair working environments. However, for businesses to improve on their  ability to embrace diversity, they need to train their people to understand that there is a financial gain from accessing the wider market.”

To ensure your workforce complies with and promotes equal opportunities legislation, Paula recommends you consult the following bodies:
•    Commission for Racial Equality’s Code of Practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment
•    Commission for Racial Equality’s Code of Practice on the duty to promote race equality
•    Equal Opportunity Commission’s Code of Practice on sex discrimination
•    ACAS good practice guidelines on tackling discrimination and promoting equality
•    Disability Rights Commission’s Code of Practice on disability discrimination (Employment and Occupation) regarding equal opportunity policies, procedures and practices in employment
•    ACAS rights at work leaflet - equality and discrimination
•    ACAS advice leaflet - bullying and harassment at work
•    ACAS guide for employers and employees - sexual orientation and the workplace
•    ACAS guide for employers and employees - religion or belief and the workplace
•    Age Concern Code of Practice for age diversity in employment