How to avoid discrimination in the workplace

While progress has been made on dealing with discrimination in the workplace, it unfortunately lives on, albeit in less obvious forms.

At a time of unparalleled focus on the goals of equality, diversity, and the prevention of unfair discrimination, it seems odd that so many employers still struggle to properly prevent and successfully deal with discrimination in the workplace.

There is no questioning that discrimination is always wrong. We are all aware (or we should be) that everyone deserves to be treated fairly when at work. The impact of being discriminated against in the workplace can have far reaching and long-lasting consequences for both the individual and the employer.

Responsibility of employers and employees in discrimination cases

Let us pause for a moment here and talk about responsibility.

The Law states that the employer is liable for acts and behaviours (on a vicarious basis), as indeed is the individual. Simply put, both the employer and their employees can be held responsible for acts of discrimination.

There is, however, a defence available to an employer if it can show that it took ‘all reasonable steps’ to prevent the employee from instigating or engaging in the discriminatory act or from doing anything of that description under s109(4) of the Equality Act 2010.

What to do when faced with a discrimination complaint

Most employers are anxious when faced with discrimination complaints. And with good reason; not only are they damaging to good employee relations, with no statutory cap on compensation (unlike in unfair dismissals claims), any successful claims brought can prove extremely costly to the business.

Yes, our discrimination laws may appear complicated, but the key principles, as outlined in the Equality Act 2010, which show that an employer should not discriminate on the basis of the protected characteristics, are not particularly difficult to understand or indeed to implement and enforce.

When it comes to issues of discrimination, fair treatment is both a moral and legal duty for employers. They have a responsibility to investigate and respond to any issue they become aware of and to take all reasonable measures to protect employees from harassment.

Education and training, to all, on policies and expected behaviours is key in preventing discrimination in the workplace.

It is essential therefore that employers understand their key obligations, what discrimination is, how it may be identified, and what training can be put in place to help staff understand its severity.

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Prevention of discrimination in the workplace

Of course, if acts of discrimination can be prevented in the first place, so much the better.

The key steps to prevention mirror closely the key actions required of an employer in demonstrating it has taken reasonable steps to avoid discrimination occurring.

The courts have made it clear that those reasonable steps will normally include:

• Having and implementing an equal opportunities policy and an anti-harassment and bullying policy and reviewing those policies as appropriate.
• Properly communicating these policies and their implications to all employees (and workers).
• Training managers and supervisors in equal opportunities and harassment issues.
• Taking steps to deal with complaints effectively, including taking appropriate disciplinary action.
• Communicating the message regularly.

Training to prevent workplace discrimination

Proper training is key not only to the implementation and enforcement of policy in reducing the likelihood of discriminatory acts in the first place, but also, if discrimination has taken place, evidence of proper and regular training enables an employer to demonstrate that it took those ‘reasonable steps’ to prevent the discrimination and to deter and prevent unfair and unlawful practices which give rise to claims of discrimination.

Practical steps

Below are some practical and helpful tips for employers on what to do should they receive a complaint or allegation of discrimination:

• Keep an open mind. Many employers choose to bury their heads in the sand and simply do not believe that discrimination or harassment could be happening within their company. It is important therefore, that employers approach each and every claim of discrimination from a neutral stance and should never make assumptions or jump to conclusions, based on a personal view point.
• Investigate fully. Investigate every complaint received. Failing to investigate a complaint of discrimination is one of the biggest reasons for discrimination cases ending up in Court. Again, as above, employers should not come to any conclusions until the investigation is complete.
• Take the complaint seriously. An employee who sees that their employer is taking the problem seriously is less likely to escalate the issue and be open to an amicable and mutual resolution.
• Treat the complainer with respect and empathy. Generally, most employees find it extremely difficult to make a complaint of discrimination. They often feel vulnerable and afraid of possible repercussions or fear being accused of having made the allegation up. This can have a major impact on their performance and productivity at work. It can also potentially lead them to seek outside assistance, e.g., Solicitors. Employers should always be prepared to listen to the concerns raised and treat the individual with understanding and empathy.
• Do not retaliate. It is against the law to punish someone for raising a discrimination complaint. This is classed as victimisation and could land the employer in even more hot water, should the claim end up in Court. Whilst there are the more obvious forms of retaliation such as termination, discipline, demotion, pay cuts, or even just threatening these, employers should be mindful that more subtle forms such as changing their shift hours or work area or even isolating the individual by leaving them out of meetings and other work-related functions, will still be considered victimisation.
• Follow established procedures. Employers should always ensure that they follow their own prescribed policies on dealing with discrimination, Failure to do otherwise leaves themselves open to claims of unfair treatment by bending the rules.
• Maintain confidentiality. A discrimination complaint can polarize a workplace. Workers will likely side with either the complaining employee or the accused employee, and the rumour mill will start working overtime. Employers can avoid these problems by ensuring that a confidentiality clause is both explicit in their policy and through their actions.

However, if employers take all complaints of discrimination seriously, and follow a careful strategy for dealing with it, they can reduce the likelihood of a legal challenge and may even improve employee relations in the process.

For further reading, we found this article in which the researchers (based in the US) evaluated the variations in the emails they received in response to employment applications submitted by (fictional) members of various ethnic groups. It contains some fascinating statistics on gender and ethnic differences.

If you would like to know more about how to avoid or handle discrimination within the workplace, vicarious liability or any other related topic, please contact us to speak to a member of our experienced, professional yet friendly team of HR Consultants today.