Discrimination 

We can help you: 
Protect your staff from discrimination 
Protect your business from legal claims 
Get peace of mind by ensuing your policies and procedures aren’t inadvertently discriminatory 
Meet your legal obligations while protecting your business interests 
Discrimination claims are especially costly, as they often take longer than other types of claim and the damages are uncapped. They are also particularly damaging to your reputation. Investing in legal advice early on is a good investment, and usually saves you money in the long term. We can help you to navigate these difficult areas, and other issues you may be facing. 

The Equality Act 2010 

The Equality Act 2010 is designed to protect against discrimination. It applies to employees, ex-employees, contract workers, applicants for employment and even self-employed workers in some cases. 
 
It is illegal to treat somebody unfavourably because of a Protected Characteristic listed in the Equality Act 2010. 
 
Usually, discrimination will be shown by comparing the claimant to an employee without the protected characteristic (with the exception of employees who are pregnant or who take maternity leave; there is no comparator in these cases and the claimant must show unfavourable rather than less favourable treatment.) 
The protected characteristics listed in the Equality Act are: 
Age 
Race 
Sex 
Sexual orientation 
Marriage or civil partnership 
Gender reassignment 

Types of discrimination 

Direct discrimination 
Treating an employee less favourably because of a protected characteristic. For example, refusing to employ women or people of a certain race. 
 
Indirect discrimination 
Where a policy or practice applies equally to everybody on the face of it, but has the effect of treating employees with a protected characteristic less favourably than others. For example, a hairdresser who insists employees must have their hair on show would be indirectly discriminating against Muslim and Sikh people who believe in covering their hair. 
 
Victimisation 
Subjecting a worker to a detriment because they have enforced their rights, or you believe they will do. This could include where the employee has begun legal proceedings, given evidence, or made an allegation regarding breaches of the Equality Act. 
 
Harassment 
Where an employee is subject to unwanted conduct relating to a protected characteristic, which creates an intimidating, hostile, degrading or offensive environment. Workplace ‘banter’ is the cause of many harassment claims. 
 
Failure to make reasonable adjustments 
Where an employee is disabled, you must make reasonable adjustments to the job or the workplace to ensure they are on a level playing field with their colleagues. Failing to do so could leave you liable for discriminating against the employee. 
 

Potential for discrimination in the workplace 

Indirect Discrimination 
Indirect discrimination can easily catch out employers as it can be easy to overlook an impact of a policy that, on the face of it, seems fair. 
 
For example, policies that limit flexible working applied equally to all staff can impact disproportionately on employees with childcare or caring responsibilities. As it is accepted by the tribunal that women are generally more disadvantaged by childcare responsibilities than men, such policies can lead to sex discrimination claims. But prioritising flexible working requests from mothers of young children to avoid sex-discrimination claims could instead leave you facing claims for sex or age discrimination from fathers or older workers. It is important to consider the impacts on all protected characteristics. 
 
Indirect discrimination may be justified if the policy is proportionate to achieve a legitimate aim, such as health and safety concerns or business needs. But just because you have a legitimate aim, don’t assume you are safe from discrimination claims. It is important to consider ways of achieving the aim that are not discriminatory, or at least less so. Similarly, you must be confident that the gain of the policy justifies the harm done. 
 
It is a good idea to seek advice before implementing policies to make sure there isn’t a hidden knock-on effect. 
 
Vicarious liability for discrimination 
If one of your employees acts in a discriminatory way during their employment, whether to a colleague, customer or other stakeholders, you could be held vicariously liable for the discrimination and associated damages. Discrimination damages are uncapped, and so claims can be very costly. 
 
Whether an act was ‘in the course of employment’ will depend upon the circumstances of the case. Tribunals have considered acts in the workplace, at work events, and online interaction between colleagues. 
 
You can defend yourself against vicarious liability by showing that you took reasonable steps to prevent the incident at the centre of the claim. You can reduce the risk of vicarious liability if a claim is brought against you by having up-to-date policies and training to prevent discrimination and maintaining a robust disciplinary procedure to uphold clear standards of behaviour. 
 
We can represent you against claims for vicarious liability and offer advice on how to avoid discrimination and vicarious liability. 
Reasonable adjustments 
If an employee is disabled under the Equality Act (they have a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out day-to-day activities) you are required to provide reasonable adjustments where possible. 
 
This applies not just to physical changes but also to policies and procedures. The adjustments will depend upon the employee’s role and disability, but could include: 
changes to the workplace, such as installing a ramp to allow wheelchair access or changes to lighting. 
provision of aids such as screen readers or phones that work with hearing aids. 
changes to work practices, such as flexible working times or taking breaks throughout the day. 
 
What is reasonable will depend upon your business circumstances and the employee’s disability. You may consider the difference the change will make and whether it is affordable or practical. 
 
Redundancy 
The redundancy process can be a difficult time for your business, so it is understandable that employers make mistakes. Unfortunately, these mistakes can be very costly. 
 
During the process, you are required to consult with your staff during the redundancy process. If you have employees who are off work on maternity or leave, or for leave relating to a disability, it is important to include them in consultations. Failing to do so could be discrimination, as it could be argued that they have been excluded from consultation because of their maternity or disability. 
 
The law prohibits the use of protected characteristics when selecting candidates for redundancy. You must also avoid a selection criteria that indirectly discriminates against those with a protected characteristic. For example, choosing candidates for redundancy based on the amount of sick leave they have taken would likely impact on disabled employees who may have more medical issues. You may make reasonable adjustments to the criteria, such as ignoring absences due to disability or pregnancy. 
 
If offering voluntary redundancy, you should avoid this being linked to protected characteristics. For example, offering voluntary redundancy to older employees before the rest of your staff could lead to age discrimination claims. If you have suitable and appropriate alternative employment, the law says this must be offered to women on maternity leave before other employees. 
 
A poorly thought out or mis-applied procedure could lead to discrimination claims. An employment law solicitor will be able to advise on a legal procedure to avoid discriminatory redundancy. 

How to protect your business 

The legal definition of discrimination is more precise than its common use. Even if you intend to treat your employees fairly and legally, misunderstanding the law could leave you facing legal claims for discrimination. It is always a good investment to seek legal advice early on to ensure you meet your obligations and give you peace of mind that your actions are legal. 
 
You should keep records of all processes and decisions, including disciplinary action, reasonable adjustments, promotions and flexible working requests. Good records can help you defend a claim by demonstrating that you followed correct processes, made decisions based on fair (non-discriminatory) criteria and considered all options. 
Simply having policies and training that emphasise the importance of equality is unlikely to be an effective defence against a claim. The Tribunal will consider whether you have taken all reasonable steps and correctly followed your procedures, and there is a high threshold to meet when proving this (Allay (UK) v Gehlen). You should also consider how to proactively instil a positive workplace culture, for example by providing regular training of a high standard, and ensuring grievances are handled correctly. 
 
Get in touch for advice to make sure your business is meeting all of its obligations and not at risk of discrimination disputes. 

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Address: Spencer Shaw Solicitors Limited 
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Harborne, Birmingham, B17 0DH 
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