Employment
Equality & Diversity

A raft of new discrimination laws have been implemented since 2003. It is very easy for your business to fall foul of the discrimination laws if you do not know how to recognise potential issues. This can be easier said than done. You should be mindful that discrimination is not limited to the workplace and can occur either before or after employment.

Currently the law recognises the following forms of discrimination as unlawful:-

• Sex discrimination;
• Race discrimination;
• Disability discrimination;
• Age discrimination;
• Discrimination on the basis of religion and belief;
• Discrimination on the basis of sexual orientation;

In addition there has been case law applying the Protection from Harassment Act 1997 ("the Act") between employer and employee. This is extremely significant because there is no limitation in the context of the unlawful discrimination. The Act may cover harassment for any reason, even if it does not relate to sex, race, disability, etc and employers may become liable for damages for the acts of their employees.

Within each of the above categories of unlawful discrimination (other than the Act) there are several forms discrimination can take including:-

• Direct discrimination;
• Indirect discrimination;
• Harassment;
• Victimisation;
  

With respect to disability discrimination there is an extra category of unlawful discrimination, namely failure to make reasonable adjustments for a disabled employee.

It is not always apparent whether an individual fits into a particular category. For example, an employer will not necessarily know the sexual orientation of its employees. In addition, perceived discrimination can be unlawful. So, if a person is discriminated against due to an incorrect assumption (for example if they "look Muslim") that will be unlawful.

Realistically you will not always know everything that is happening on the 'shop floor' of your business. Relevant managers should be trained appropriately so that they can spot potentially discriminatory behaviour before it escalates into a problem. The affected employee may not complain until it is too late (and the grounds for a claim have been established)

Avoiding Claims
Employees should be left in no doubt as to what is acceptable conduct and what will not be tolerated in the workplace. Once this is done and implemented (and monitored) correctly it may be possible for your business to defend a claim on the basis that it had done everything reasonably practicable to prevent the discriminatory behaviour. The best way of accomplishing this is to implement a written equal opportunities policy and provide employees and managers with appropriate training on the policy. The policy should be monitored on a regular basis. A record should be kept as to which employees attended the training and when, and your business will need to demonstrate that a policy has been made available to every single employee.

tbi's Employment Team would be happy to help in drafting an appropriate policy for your business and/or in providing discrimination advice on a case by case basis.