The Equality Challenge

Jackie Turner, Partner and Head of Employment & HR, explains why it is important that companies are aware of the Equality Act 2010 all year round and not just for awareness days.

With Pride Month having been recently celebrated in June and Newcastle’s own Northern Pride Festival returning from the 19th – 21st July, the summer months see a wave in awareness and support for the LGBT+ community.

However, as an employer, it takes more than just including the pride flag in your company’s logo or tweeting your support for International Women’s Day to show your commitment as an equal opportunities’ employer, advocating inclusion and diversity.

Equality of opportunity is vital in the workplace – not just from a moral perspective or to protect your brand, but to ensure that you are abiding by the law. Employees should not be treated differently on the basis of a characteristic like their sexual orientation.

The Equality Act 2010 protects people from unlawful discrimination, harassment and victimisation in the workplace and other fields such as education and the provision of goods and services. The law prevents anyone from being treated unfavourably in relation to any of the nine protected characteristics: age; disability; gender reassignment; race; religion or belief; sex; sexual orientation; marriage and civil partnership; pregnancy and maternity.

Employers also have an obligation to ensure that none of their practices or policies in the workplace indirectly disadvantage workers by reason of these nine protected characteristics. For example, a policy regarding dress code may impact on articles of clothing that employees may wear to manifest their religious faith. Employers should consider whether any of their policies or practices may  involve indirect discrimination and, where this is the case, consider how they would justify that policy or practice. In light of this, employers should regularly review their practices and policies to ensure no employees are being treated unlawfully. Training on equal opportunities and avoiding discrimination is also recommended, if not for all staff then at the very least those with recruitment and line management responsibilities.

Employers also have a duty to make reasonable adjustments in the workplace. Steps must be taken to address disadvantages connected to somebody’s disability, where it is reasonable to do so. Employers should remember that disabilities are not always visible or obvious. Depression can, for example, be a disability under the Equality Act. Problems or issues will often be highlighted by an employee but, even if your employee has not specifically alerted you to a medical condition, an employment tribunal can determine that you ought reasonably to have been aware of it. For example, if an employee is uncharacteristically emotional, upset and making mistakes at work, this may be enough to put an employer on notice of depression. 

Where the employer has knowledge of a disability and a disadvantage to an employee, the duty is firmly on them to make whatever adjustments are reasonable, whether or not the employee has requested them.

If you are an employee who believes you have been subject to discrimination by your employer, usually you should pursue your complaint through your employer’s internal procedures first. You may be penalised in the employment tribunal for not doing so. If internal procedures do not resolve matters satisfactorily, you will need to raise the issue via the ACAS (Advisory, Conciliation and Arbitration Service) Early Conciliation Procedure before bringing a claim to the employment tribunal.

If you are an employer faced with a complaint from a member of staff claiming that they have been subject to discrimination, you must first of all treat the complaint seriously. You should investigate the issues raised and consider all of the evidence before reaching a decision. If you do not, then you are putting your company, and potentially yourself, at risk. Discrimination complaints can be time consuming and expensive, particularly if they end up in the employment tribunal. They can also involve personal liability for those involved. Employers should seriously consider taking legal advice when any complaint of discrimination is made. Your lawyer can help you manage internal procedures to your best advantage and, where matters escalate, help you prepare your evidence in defence of a claim.

Ensuring that employers abide by the law is the absolute minimum that should be done in the challenge for equality. Forward thinking companies have realised that fostering and promoting an inclusive and diverse workplace is good for business. Customers expect this from brands. Those companies that do not have this on their agenda will get left behind. And besides, what company would not benefit from having a broad range of employee viewpoints.

If you would like to chat to Jackie or for further advice, please contact her on 0191 466 1000 or email jackie.turner@sjs-law.co.uk.

June 2019