All employers will have seen alarming headlines in the press reporting huge payouts on discrimination claims. The record is currently £1.4m for a sex discrimination claim. Payments of this level are exceptional, but even more modest amounts can cause significant damage to businesses.
The increasing volume of discrimination legislation and the complexity of the law is a worrying area for employers - particularly since there is no limit on the compensation and no qualifying period of service before obtaining protection. However, employers can take steps to prevent claims arising and to improve their prospects of success should a claim be issued.
Unlawful discrimination
UK legislation covers discrimination on the following grounds:
- sex gender or marital or civil partnership status, or persons who have undergone, or intend to undergo, gender change
- race colour, race, nationality, or ethnic or national origins
- sexual orientation homosexuals, heterosexuals and bisexuals
- religion or religious belief
- disability
- age from 1 October 2006.
Although this list is growing, there has at least been some move towards greater consistency in the definitions and general provisions of discrimination legislation, and many of the actions that employers can take will be similar, regardless of the type of discrimination claimed. However, employers should note that there are important technical differences, and the need for professional advice is a must.
Direct discrimination
This is the most obvious form of discrimination, and applies where a person is treated less favourably on the grounds of race, sex and so forth. Examples of direct discrimination include treating a woman adversely because she is pregnant, or refusing an applicant a job on the grounds of race.
Less favourable treatment can take almost any form and could, for example, include failure to deal with a grievance, to provide a reference, or the removal of responsibilities.
Motive is irrelevant to the question of whether there has been discrimination. Whether or not the discrimination was conscious is also irrelevant, as 'those who discriminate on the grounds of race or gender do not in general advertise their prejudices; indeed, they may not even be aware of them' (Glasgow City Council v Zafar [1998] IRLR 36).
If an employee establishes direct discrimination there is no defence.
Indirect discrimination
Indirect discrimination is less obvious in its nature. It arises where a policy or practice appears to treat all people equally, but in fact has an adverse impact on one particular group.
Examples of this include requiring employees to work full time, refusal to allow part time working, or insistence on certain qualifications or skills which persons of particular ethnic backgrounds are less likely to have.
It is possible for employers to defend indirect discrimination claims if they can demonstrate a genuine business reason. The tribunal must then weigh up whether the employer's business needs outweigh the impact on the protected group and individual employee.
Harassment
There are now statutory definitions of harassment in the relevant legislation. Harassment occurs where an employee engages in unwanted conduct which has the purpose or effect of violating another employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
In practice, harassment claims can be particularly difficult, as what is offensive to one person may not be offensive to another, and there is therefore an element of subjectivity. The test does however try to militate against hypersensitivity. Also, in harassment cases there is often little or no direct evidence, and it may be a case of one person's word against another's.
Victimisation
Victimisation provisions protect employees from less favourable treatment for asserting their rights under the discrimination legislation or from assisting others, for example by acting as a witness.
It is for this reason that it is important for employers to tread carefully when employees raise complaints or allegations and ensure that further discrimination does not arise.
Burden of proof
Issues regarding the burden of proof have caused many problems in discrimination cases, as there will often be no direct evidence of the reason for different treatment. Changes have been made to the provisions regarding the burden of proof, which are likely to assist employees in establishing their claims.
The initial burden lies with the employee to prove their case. However, if the primary facts indicate that discrimination could have arisen, then it is for the employer to provide a sufficiently robust explanation to establish that it did not discriminate.
It is important for employers to understand that their explanations will be subjected to considerable scrutiny, as is illustrated by the guidance given in the leading case of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205. 'Since the facts necessary to prove an explanation would normally be in the possession of the (employer), a tribunal would normally expect cogent evidence to discharge that burden of proof.'
Who is liable?
If an employee discriminates against a colleague, both the employer and employee can be liable, provided the employee was acting 'in the course of employment.' This concept is widely defined and can extend to acts outside the workplace. The employer will have a defence against such a claim if it can show that such steps as were reasonably practical were taken to prevent such discrimination - in other words, that the guidance detailed below was followed.
Disability
The Disability Discrimination Act (DDA) has a number of key differences from other discrimination legislation. In particular, the legislation only protects those who come within the definition of a disabled person under the DDA, and there is a positive duty on employers to make reasonable adjustments.
A person has a disability if he has 'a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities.' Recent changes to the definition have included some conditions which are deemed to be disabilities, such as cancer, HIV and multiple sclerosis. Further, there is now no need to establish that a 'mental impairment' is a clinically-recognised illness. The focus will now be on the effect that the illness has on normal day to day activities, which may make it easier to establish stress-related conditions as a disability than it previously was.
It is important for employers to realise that, in certain situations, liability can arise even where the employer was unaware of the disability.
Justification is a particularly important concept in disability discrimination cases and will often be the determining factor. Again, employers' explanations will be scrutinised, but justification can arise where there are genuine health and safety reasons, or where the employee can not carry out any of the functions of the job.
Employers must be able to show that they have properly considered what adjustments could be made, obtained expert advice and consulted the employee. Adjustments may vary from altering premises to altering duties. The employer's size and resources will be taken into account, but in practice most adjustments cost less than £100.
What employers should do
- Make sure that you follow the relevant codes of practice. The tribunals will take into account any failure.
- Give full answers to any discrimination questionnaires. There are statutory questionnaire procedures provided for in the legislation, which allow employees to ask questions and obtain information prior to issuing proceedings. If issued, employers must complete these fully, as failure to do so can lead tribunals to infer discrimination.
- Deal with any other requests for information properly, as similar inferences may be drawn from a failure to do so.
- Make sure your equal opportunities monitoring is in place and take action to address any areas which show a pattern of treatment towards persons of a particular group.
- Avoid unreasonable or hostile behaviour. Employers may be able to argue that they are equally unreasonable to all employees, but this may lead to an inference of discrimination in the absence of good evidence to the contrary. In any event, it is not a good PR defence!
- Treat allegations of discrimination or harassment seriously, investigate fairly and thoroughly and take appropriate disciplinary action. Be careful that employees raising allegations are not subjected to further discrimination.
- Conduct a thorough review of all formal and informal policies and procedures and make sure you follow them. Once again, failure to do so may lead to an inference of discrimination. In particular, consider whether your policies may disadvantage the newly protected categories: age, religion, sexual orientation and civil partnerships.
- Staff need to be made aware (through training, notice boards, circulars, contract of employment) that it is not only unacceptable to discriminate, harass or victimise someone on grounds of sex, race, age religion or sexual orientation, it is also unlawful, and they could be personally liable. It should also be clear that this is a disciplinary offence.
- Keep training records so that you can show evidence that you have taken all reasonable steps to prevent discrimination arising.
- Staff should also know what to do if they believe they have been discriminated against, or harassed, or if they believe someone else is being subjected to such treatment, so policies must be properly implemented.
- Develop some of the HR team to become expert in discrimination issues. They will then be on hand to deal with disciplinary or grievance processes, or to provide advice.
- Check standard terms and conditions of employment, particularly those which confer benefits on staff and their families and ensure that these cover civil partnerships.
- In interviews, avoid questions about marital status, children, or anything which might be taken to be an enquiry into sexual orientation. Ensure that all involved in the recruitment process are adequately trained and that you can show evidence that recruitment decisions are made on the basis of objective criteria. Using an interview panel is likely to assist in avoiding bias or stereotypical assumptions.
- Promotions should be transparent, in line with good practice, and based on factors which are clearly related to competence.
- Health information should only be requested at application stage to ensure that disabled applicants are not disadvantaged and to ensure that all reasonable adjustments are made to the recruitment process. If medical assessments are undertaken subsequently, they must be related to the job in question, and consideration must be given to reasonable adjustments.
- Where a disability issue arises, employers must take expert advice and consult the employee. They must be able to show evidence that consideration has been given to all possible reasonable adjustments.
- If a disabled employee risks dismissal through being unable to return to the previous job, employers must give positive consideration to alternative vacancies, with any reasonable adjustments that could be made.
Alison Love is partner, head of employment group, Hugh James solicitors, Tel: 029 2039 1075, E-mail: alison.love@ hughjames.com
