Do you know what the law says?
Sarah Evans provides a helpful reminder of what the law demands under the Equality Act 2010 and recommends that all organisations take the time to review and refresh their internal policies.
We all, in the main, know what is fair and unfair, right and wrong when it comes to how we, whether as individuals or corporations, treat people who work for us. We generally know what “equality” as a concept means and should look like from the shop floor to the board room when recruiting and promoting and when assessing performance. However, as an employment lawyer who acts for individuals, I see plenty of cases where this has not been put into practice.
The Equality Act 2010 was brought in to consolidate the raft of disparate antidiscrimination legislation that had emerged over the preceding 40 years.
It prohibits particular unfair, unfavourable, less favourable and detrimental treatment of individuals where that treatment is based on or associated with particular characteristics. Those “protected characteristics” are gender, sexual orientation, race, disability, religious belief and age, pregnancy and gender reassignment.
The Act applies not only to employees and workers, but also to broader groups – those in receipt of services from the state, such as education, and the supply of particular goods and services for example.
It is in the workplace, however, that we hear most about equality legislation and unfortunately, of employers falling foul of their duties under it.
The concept of equality law in the workplace is pretty straightforward. In a nutshell it requires employers, and those acting on behalf of employers, to not do/ allow, because of someone’s sex, sexual orientation, race, disability, religious belief, and/ or age, the following:
Direct discrimination – treat them less favourably than they do or would treat others: E.g. not promoting an individual because they are female, gay or disabled. The only exception to this is in the case of age discrimination where the employer can prove there is a legitimate reason for the treatment and that treatment is not disproportionately less favourable.
Indirect discrimination – apply policy or rules which disproportionately disadvantage a group of individuals with a particular protected characteristic: E.g. requiring all staff to sign up to new contracts where older workers will lose benefits accrued over time, and there is no objective justification for the requirement.
Harassment – violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them: E.g. creating or allowing a culture where racist or sexist comments are acceptable.
Victimisation – subjecting someone to a detriment because they have or you think they have/ will complain of breach of the protection of the Equality Act: E.g. threatening someone with performance management/disciplinary sanction because of a complaint or grievance they have raised.
Associative discrimination – discrimination in any of the above guises because of an individual’s associations with another with a protected characteristic: E.g. a father dismissed because he has caring responsibilities for a disabled daughter, or the rebuke of a colleague who accompanied a woman in a grievance about pregnancy discrimination.
While the principles behind the legislation are straightforward, the application to specific sets of circumstances can be more complex, which is why having an understanding of what is lawful and unlawful, and creating policies that work, but also following them, is key for employers.
Now that judgments are published and tribunal fees have been ruled unlawful by the Supreme Court, it would seem an appropriate time to refocus and revisit policies, procedures and, vitally, training those managers who make decisions and implement your work every day.
For those who need a refresher there is a wealth of information and training available online through ACAS and government websites, about how to comply with the Equality Act and create an inclusive, effective and equality driven workplace.
Sarah Evans is head of employment, Manchester, at Slater Gordon.