Many employers consider they are an “equal opportunities” employer because they have an equal opportunities policy. While this demonstrates a commitment to treating people fairly and equally, it is just the start and is no longer enough to eliminate discrimination and encourage diversity in the workplace.
A better assessment of whether your business is an equal opportunities employer is your response to the questions below.
- Do you have diversity in the workplace?
- Can you say your workplace culture is inclusive?
- Do you have clear policies to tackle discrimination?
- Are employees and workers aware of their responsibilities?
- Are your policies and procedures robust?
- Do you know how to manage grievances involving discrimination?
- Do you monitor diversity and inclusivity in the workplace?
If you answer “no” or you are “not sure”, then you are probably unlikely to be able to demonstrate you are an equal opportunities employer, if asked to do so or challenged.
Why does it matter?
There are a variety of reasons for getting it right, from creating a great place to work, having the competitive edge to managing legal risk.
Purely from a people management perspective a workplace culture that is underpinned by a strong equal opportunities culture has the competitive edge. It will help people achieve their full potential, which will make a significant contribution towards the achievement of operational and financial goals. It is also a great tool for retaining and attracting the best talent.
In a business-to-business scenario, many organisations want to know more about who they are doing business with. This means more than being simply advised that an equal opportunities policy exists. Requests for information in tender processes have become more forensic with their enquiries. A workforce profile focusing on gender and ethnicity data particularly focusing on the senior level will be the starting point. Gender and ethnicity pay gap details may be required. Currently, private and voluntary sector employers with 250 or more employees will need to publish their gender pay gap figures. There is however currently no legal obligation to publish ethnicity pay gap figures. You may also be required to describe ongoing diversity and inclusion initiatives, including details of how success is measured.
Of equal importance and even more important when it comes to protecting the business’ reputation and financial wellbeing, is the need to manage the legal risk of possible discrimination claims.
What are the legal issues?
The Equality Act 2010 prohibits discrimination on the grounds of a number of protected characteristics namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
Employers needs to understand the broad scope of the Act:
- Job applicants and workers are protected.
- The employment life cycle from recruitment to terms and conditions, pay, through to training, promotion and dismissal is covered.
- Certain standards of behaviour in the workplace are required. Workers and job applicants must not be discriminated against, harassed or victimised by another person because they have any of the protected characteristics identified above.
- Someone who is perceived to have a protected characteristic or where they are associated with someone who has a protected characteristic, are protected from discrimination.
Compensation for successful discrimination claims is uncapped. An award of compensation can include financial loss, injury to feelings and personal injury. For the period 2019/2020, the highest award for discrimination was in a case of disability discrimination where the claimant was awarded £265,000. This appears high but given the complexities of discrimination claims, which often involve multiple complaints, compensation can be even higher. This year in the case of Barrow v Kellog, Brown & Root (UK) Limited, the tribunal awarded Mr Barrow £2.5 million in compensation arising from unfair dismissal and disability discrimination complaints. This is one of the highest damages award for discrimination but is only the second highest for disability discrimination! This shows that there is genuinely no limit on the compensation that can be awarded.
Employers also need to recognise that anything done by their employees or workers in the course of their employment will be deemed to be done by the employer. This is the case, even if the employer was unaware or did not authorise it. To avoid liability, employers would have to be able to demonstrate that all reasonable steps have been taken to prevent unlawful discrimination in the workplace. The message from the Employment Appeal Tribunal earlier this year in the case of Allay (UK) Ltd v Gehlen is that an equal opportunities policy and the fact there has been training is insufficient for an employer to escape liability for discrimination carried out by its employees. Employers must ensure that the workplace training is of substance and conducted regularly, at least annually. How recent or current is your workplace training on discrimination?
So, what is next for your business if you answered “no” or “not sure”?
You may decide that you do not need to do anything if you are relaxed about the people management or business-to-business perspectives. You may also take the same view when it comes to the risk of a discrimination claim. However, the latest figures with regard to employment tribunal claims, while showing a reduction in the number of single claims, indicates an aggregate increase in claims over the last few quarters. Our experience is that many claims now have a discrimination angle.
If the tribunal figures are not a signal for change, it might be worth thinking about the recent case of Forstater v CDG Europe and others. In this case, the employer had to grapple with the issue of “philosophical belief” under the Equality Act 2010. Ms Forstater had gender critical beliefs, including a belief that sex is immutable i.e., there are only two genders, male and female and there can be nothing in between or that it is never possible to change sex. Ms Forstater debated her views on social media, which colleagues raised concerns about as they could be offensive to transgender people. As a consequence of her views, Ms Forstater’s engagement as a visiting fellow was not renewed. Ms Forster claimed that her gender critical belief constituted a protected characteristic, namely a “philosophical belief” and that the non-renewal of her contract amounted to discrimination. The Employment Appeal Tribunal agreed with this position, even though her comments could be offensive to others.
While this is an important decision because of its impact on the debate over trans rights and the rights of those with gender critical views, the purpose of highlighting it is to raise the question as to how your business would address such complex and sensitive issues and would it be prepared for the legal costs and the publicity this case has commanded?
Being confident about managing diversity and discrimination in the workplace means being able to answer “yes” to the questions above. If you want to change the “no” or “not sure” to a “yes”, then making equal opportunities and discrimination a priority for the business will be a good place to start.
FG Solicitors’ legal team are experts in helping its clients address its employment law and people management issues, so that they have greater certainty over their financial and operational outcomes.
If you want to your answers to change from “no” to “yes” by updating your policies and procedures, having support with a difficult grievance about discrimination or refreshing your training, please feel free to call us on 0808 172 9322 for a no obligation discussion.
WELCOME TO A MORE CONFIDENT FUTURE!
This update is for general guidance only and advice should be taken in relation to a particular set of circumstances.