Discrimination in the Workplace - Advice For Employers

Specialist employment law advice and guidance for employers of all sizes across the UK

Workplace Discrimination – We can help

Data from ACAS and the Employment Tribunal Service indicates that complaints of unlawful discrimination and harassment in the workplace continue to increase. These complaints range from formal grievances to Employment Tribunal proceedings.

We work with a wide range of employers from a variety industry sectors including financial services, private equity, technology, property, hospitality, manufacturing, retail, renewables and healthcare service providers.

We have a great deal of experience of dealing with internal grievance investigations and claims in the Employment Tribunal.

We advise on all aspects of discrimination, bullying and harassment, failure to make reasonable adjustments, and victimisation.

We can provide diversity training to reduce the likelihood of discrimination claims in the workplace. Due to our proactive approach we have an excellent record of defending employers against allegations of discrimination. 

Why would an employer need or want advice about discrimination in the workplace? 

The primary reason for any employer taking legal advice is that preventing and addressing unlawful discrimination is a legal requirement that can also damage your culture, reputation, and business if left unaddressed.

Discrimination in the Workplace - Get In Touch Today

If you are concerned about discriminaion in the workplace and need expert legal advice contact us today.

 

Harassment in the workplace

What is workplace discrimination?

Discrimination in the workplace can occur in one or more of the following ways.

Direct discrimination –

Under the Equality Act 2010 direct discrimination occurs when person A is treated less favourably by person B because of a protected characteristic, such as sex or race. For example a woman is not offered a promotion because she has been on maternity leave and the job goes instead to a less qualified man.  

Indirect discrimination

This occurs where a provision, criterion or practice (PCP)  is imposed uniformly but with discriminatory consequences. For example, a minimum height stipulation for employees might indirectly discriminate against women. Indirect discrimination will not be unlawful if it can be shown to be justified, i.e. where the PCP is a proportionate means of achieving a legitmate aim. 

The employer would need to be able to show that it has a real business need justifying the particular provision, criterion or practice and it could not be achieved in a less discriminatory way. This is known in legal terms as showing objective justification. 

What is a Provision Criterion or Practice (a “PCP”)?

A provision criterion or practice (PCP) is a legal term used in discrimination law.

In order to prove indirect discrimination an individual must prove that the employer has introduced a provision criterion or practice and the it has been applied to them. See Section 19(1) of the Equality Act 2010.

The individual must prove that the PCP when applied puts them at a disadvantage because of their race, sex, age etc.

The phrase ‘provision, criterion or practice’ is not defined by the Equality Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions.

A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a ‘one-off’ or discretionary decision.

Example: A factory owner announces that next month, due to an increase in demand, all staff must be at work by 08:30. This is an example of a policy that has not yet been implemented but which still amounts to a provision, criterion or practice. The decision to introduce the policy could be indirectly discriminatory because of sex, as it might put the employer’s female workers who care for young children at a particular disadvantage. The employer must show that the provision, criterion or practice can be objectively justified.

Harassment

Harassment—this is unwanted conduct, related to a protected characteristic, which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for someone or violating their dignity. Harassment may also be of a sexual nature. It may also occur where someone harasses the victim, the victim either rejects or submits to the harassment and, because of that rejection or submission, that person then treats the victim less favourably. 

Victimisation

Victimisation – this is treating someone less favourably because they have alleged discrimination or asserted their right not to be discriminated against because of a protected characteristic. An example of this would be a disabled employee claiming that they had been discriminated against, who is then refused a reference by their manager because of that claim.

Protected Characteristics

Age

Disability

Gender reassignment

Marriage and civil partnership

Pregnancy and Maternity

Race (including colour, nationality and ethnic or national origin)

Religion or belief

Sex

Sexual orientation

    Discrimination arising from disability

    Occurs when an individual is treated less well or is put at a disadvantage for a reason that is related to their disability. For example, an employee with Multiple Sclerosis is prevented from receiving a bonus because of time she has taken off to receive treatment.

    Discrimination arising from disability is unlawful unless the organisation or employer can show that it has a good reason for the treatment and that it is proportionate. This is known as objective justification. For example, an employee with multiple sclerois whose mobility has seriously deteriorated cannot do as much work as his non-disabled colleagues. If his employer sought to dismiss him, after ruling out the possibility of redeployment or retraining, the employer would need to show that this was for good reason and was proportionate.

    The employer will not be liable if it can show that it did not know and could not reasonably have been expected to know that the employee had the disability.

    Failure to make reasonable adjustments (for a disabled employee)

    A failure to make reasonable adjustments refers to a breach of the employer’s duty to ensure that workers and applicants are not substantially disadvantaged in carrying out or applying for a job because of a disability when compared with people who do not have a disability.

    Under the Equality Act 2010, employers are under a duty to make reasonable adjustments in the workplace to ensure that disabled workers and job applicants are not substantially disadvantaged in carrying out their job role or applying for a vacancy.

    A ‘reasonable adjustment’ is a change deliberately designed to remove or reduce any barriers that an individual may be faced with in performing, or applying for, a job because of:

    • A physical feature of the workplace premises: this refers to the layout of the premises or the lack of a physical feature, such as a lift or toilets with wheelchair access;
    • Any failure to provide an auxiliary aid: this refers to the provision of extra equipment or support such as computer software for a blind person or a sign language interpreter for someone with hearing problems;
    • A provision, criterion or practice applied in the workplace: this typically refers to working arrangements, such as the hours an employee is required to work, the duties they are required to undertake or the targets they are asked to meet.

    Employment Lawyers for Employers

    EPR Law is a trusted advisor to companies, LLPs and partnerships at all stages of their development.  We have a thorough knowledge and understanding of how quickly workplace issues arise and if left unaddressed, they develop into disputes. We can anticipate what the other side is thinking and consequently we explain the strategic options available to you so you can plan accordingly.

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