And top tips to avoid making the same mistakes
The concept of equality in the workplace, and legislation to protect employees from being subject to discrimination, have been in place for many years. But the reality is that many employers still fall into the trap of discriminating against employees and potentially face hefty compensation claims in employment tribunals.
The following are the five most common reasons given by employers in tribunals and top tips on avoiding discrimination disputes arising in the first place.
Excuse 1 ‘I didn’t know a severe nut allergy would be classed as a disability under the Equality Act 2010.’
In the employment tribunal case of Wheeldon v Marstons plc , the claimant, who was a chef, suffered a severe allergic reaction when he came into contact with nuts at work. His severe nut allergy was found to be a disability.
Tip Whenever possible, employers should engage with employees to find out all necessary information about any medical conditions they have, and the likely impact on their ability to carry out their job. By being aware of any potential issues, employers can discuss whether it is necessary to make certain reasonable adjustments.
Excuse 2 ‘I’m not responsible for my staff’s discriminatory behaviour.’
Employers often argue this. But they can, in certain instances, be held liable in law for discriminatory acts carried out by their employees.
Tip It is important to have a detailed yet practical policy on equal opportunities available to all employees, and to make it clear that employees are advocates for the business at all times during the course of their employment.
Regular training on equal opportunities can also help reduce the risk of a tribunal holding an employer vicariously liable for the discriminatory behaviour of an employee.
Excuse 3 ‘The cost of making the adjustment would be detrimental to the business.’
It is common for employers to argue that a specific adjustment would be prohibitively expensive without actually having considered the adjustment fully, or their duty under the Equality Act.
Such ignorance can all too easily cost a hefty sum in compensation when facing a claim for failure to make reasonable adjustments.
Tip The high cost of making an adjustment does not necessarily make it an adjustment unreasonable to request. The Equality and Human Rights Commission code of practice (pdf) states that even if an adjustment has a significant cost associated with it, it may still be cost-effective overall; for example, compared with the costs of recruiting and training a new member of staff. In this context, making even an expensive adjustment could be considered reasonable.
Excuse 4 ‘I know this is discriminatory treatment but it is essential for the business.’
Justifying discriminatory practices on the basis of business needs is a common mistake. For example, banning part-time working on the basis that it is necessary to have the consistency of the same person doing the same job for a full working day.
This type of approach may be justified in limited circumstances but there is a high risk that an employer adopting a blanket ban on part-time workers would be found to be discriminating. The company would have to be able to demonstrate that such an approach is a necessary and appropriate mechanism for achieving a legitimate objective.
Tip Employers must ensure that part-time workers are not treated less favourably. Requests for part-time working should always be dealt with in a fair and reasonable manner. It may be that the company has not historically had many part-time workers but this is not a reason to be dismissive towards someone putting in a request to work part time.
Excuse 5 ‘I didn’t know this was the wrong way to handle a flexible working request’
Claiming ignorance when dealing with a flexible working request incorrectly is common; for example, assuming that flexible working requests from a male employee are less important than those from female employees. The consequences of getting it wrong could easily form a sex discrimination claim.
Tip Flexible working requests should be dealt with in the order in which they are received, irrespective of the sex of the employee making the request, and employers should take a consistent approach to them. Training for managers on what the correct process is can prove a small price to pay in the long run.