By Sarah Furness, Partner in the specialist Employment Team at Hay & Kilner
Among the many responsibilities that employers have is a responsibility to do all they can to prevent discrimination in the workplace.
Discrimination happens when less favourable treatment occurs because of one of the nine ‘protected characteristics’ identified in the Equality Act 2010.
These are age, race, religion or belief, sex, sexual orientation, disability, marriage and civil partnership, pregnancy and maternity, and gender reassignment.
The key thing employers need to know – and for them to act on in advance – is the fact that any act of discrimination carried out by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee’s acts were done with the employer’s knowledge or approval.
In a recent employment tribunal case, for example, the question of whether using a gendered swearword to insult a transgender staff member constituted discrimination was considered.
The tribunal found that the incident didn’t actually occur, but in doing so, it provided some useful guidance on the ‘reasonable steps’ an employer can take to prevent discrimination in the workplace and therefore defend discrimination claims. It is for the employer to provide that it did everything it could to prevent its employees committing discriminatory acts, which can often be difficult.
This particular tribunal found that the employer took the following ‘reasonable steps’ because:
It had equal opportunities and harassment policies in place which were shared with agencies that supplied contract workers and included as part of the induction process.
Staff were encouraged to report any concerns.
The employee’s manager had, to some degree, investigated the complaint she had made.
However, in order for the employer to have fully satisfied the ‘reasonable steps’ defence, the tribunal found that the following additional steps could have been taken:
Regular reviews of policies should have taken place and it should have been made clear that they apply to agency workers as well as direct employees.
A focus on equality and inclusion in workplace policies, rather than on equality alone.
Policies should have been readily available to staff and the employer should have ensured they were understood.
Employee representative groups could have been set up, for example an LGBTQ+ group.
The employer should have raised awareness of equal opportunities generally, but especially transgender awareness.
Training days and workshops on inclusive communications should have been held.
As with many employment law issues, full preparation for situations which might occur in the workplace is the key to avoiding issues in the future and all North East employers would be wise to take heed of the tribunal’s guidance.
Getting expert advice in making sure that all your relevant workplace policies are fully up to date and holding regular equality, diversity and inclusion training are two key ways to minimise the risk of a business having to face an employment tribunal claim.
For further information and advice on all aspects of developing and implementing workplace policies, support with training, or any aspect of employment law, please contact Sarah Furness at sarah. furness@hay-kilner.co.uk or on 0191 232 8345.