Discrimination June 2010

Avoiding claims of discrimination

by Fluid

June 2010

Contents3-4 Introduction to Fluid5-6 Legal considerations7-8 Discrimination Law Review-

green paper9-10 Acknowledgement of bias11-12 Exercise A13-14 Ageism15-25 Disability26-27 Dyslexia28-29 Gender30-31 Race32-33 Religion34-35 Sexual orientation36-37 Smoking38-39 National Dismissal Register40-41 As a victim of discrimination42-43 Yes or no quiz44-48 Equality Act49-50 Case studies51-52 Exercise B53-54 Conclusion and questions

Introduction

Introduction to Fluid• Fluid Consulting Limited (Fluid) is a specialist

human resources consultancy headed by Tim Holden MCIPD

• 10 years in banking• 10 years in Human Resources consultancy• Fluid trading since 2006• The core services provided by Fluid are:

- Retention- Selection- Attraction- Remuneration & Reward - Outplacement- Training & HR consultancy

Legal considerations

Legal considerations

• Legislation• Types of discrimination• Direct discrimination• Harassment and segregation• Indirect discrimination• Victimisation• Genuine Occupational Requirement• Cost of discrimination

Discrimination Law Review-green paper

Discrimination Law Review-green paper

• Introduce an equal pay moratorium where employers carry out pay audits and have a set period free from legal challenge within which to identify any inequalities identified

• Develop an ‘equality check tool’ for employers to use, as recommended by the Women and Work Commission

• Consider introducing a voluntary equality standard scheme, which could be an independently assessed, accredited standard

• Important role for the Commission for Equality and Human Rights to develop positive action guidance

• Extending positive duties in the public sector to cover all grounds of discrimination

Acknowledgement of bias

Acknowledgement of bias

• Need to accept we are biased; without this recognition there can be no progress

• Need to understand what biases we really have.

• Need to be able to discuss these biases with each other-need to ensure we challenge each other and remain vigilant and alert, not only to our biases but to those of others around us

Exercise A

Ageism

Ageism

• Treating people differently on the grounds of age will be direct discrimination unless it can be justified objectively

• To prove ‘objective justification’ employers have to show their discriminatory actions were a ‘proportionate means of achieving a legitimate aim’

• Employers concerned about discrimination should identify what they want to achieve, come up with proposals, consult with stakeholders, consider alternatives and take reasonable action

• Employers can safely retire employees at 65, if they follow the retirement procedures

Disability

Disability 1 of 10

• Employers need to be aware of the need to make reasonable adjustments in cases where a provision, criterion or practice places a disabled person at a substantial disadvantage

• An employer has to take reasonable steps to prevent that disadvantage, and there is no defence of justification for failure to comply

• The DDA provides non-exhaustive lists of steps to be considered but there are still many grey areas for employers

Disability 2 of 10

• Employees injured at work may sue for damages in a personal injury claim. If they are disabled, there may also be a discrimination claim under the DDA, if they can prove that the employer has failed to comply with the act’s premises regulations

• Employers’ insurance policies generally only cover bodily injuries to employees rather than ancillary discrimination claims that may also arise

• Case law suggests that secondary injury to feelings claims are likely to cost more than £1000

Disability 3 of 10

• HOW FAR SHOULD THE DDA GO?• Certain conditions are deemed ‘disabilities’ for the DDA,

including blindness, severe disfigurements, cancer and HIV• In other cases, an individual’s condition must meet the

statutory definition of disability to be protected under the DDA-but this can often lead to uncertainty particularly in the case of mental impairment

• Certain conditions are excluded from the DDA such as substance addiction-however providing an impairment falls within the definition of disability its cause is irrelevant

• Employers should audit all policies and procedures for disability bias and regularly review the effectiveness of procedures for identifying potential disabilities and reasonable adjustments

Disability 4 of 10

• Disability-related discrimination occurs when someone is treated less favourably “ for a reason that related to that person’s disability” than others “to whom that reason does not or would not apply”

• Establishing disability-related discrimination means asking: Has the disabled person received less favourable treatment for a reason relating to the disability? If so, can the less favourable treatment be justified as being “material to the circumstances of the particular case and substantial”?

Disability 5 of 10

• CHANGES MADE BY EMPLOYERS TO RECRUITMENT PRACTICES

• Offered a guaranteed interview to any person with a disability who meets essential criteria for the job

• Included text in recruitment materials to show employer welcomes applicants with disabilities

• Changed wording and/or images in job ads to give positive impression about commitment to employing people with disabilities

• Modified the content of person specifications and/or job descriptions

Disability 6 of 10

• CHANGES MADE BY EMPLOYERS TO RECRUITMENT PRACTICES

• Modified the organisation’s website to ensure it is accessible to people with disabilities

• Made alterations to improve interview access for applicants with disabilities

• Offered to provide an application form in alternative formats

• Changed application form to make it easier for people with disabilities to complete

• Advertised vacancies in the disability press to attract applicants

• Sent organisation’s diversity/disability policy to applicants

Disability 7 of 10

• MAKING ADJUSTMENTS• Accommodating the needs of disabled workers

extends way beyond installing a ramp or adapting toilet facilities. Forward-thinking employers go out of their way to make the jobs of disabled employers easier and fit in more flexibly to the business, with changes that include:

• Employing signers to enable deaf people to attend important meetings

• Identifying products by colour codes rather than numbers

• Flashing lights for deaf employees and vibrating alerts for blind workers

Disability 8 of 10

• Alterations to heavy doors for multiple sclerosis sufferers

• Assisting with costs for wheelchairs, hearing aids etc.

• Allowing dyslexic employees to dictate reports rather than to write them down

• Disabled car parking adjacent to the office• Providing an appropriate environment for hearing

dogs/guide dogs• Painting doorways in bright colours for the

visually impaired

Disability 9 of 10

• REASONABLE ADJUSTMENTS• Conducting a proper assessment of what

reasonable adjustments may be required• Altering hours or the place of work• Reallocating duties to another employee• Modifying disciplinary or grievance procedures or

redundancy selection criteria

Disability 10 of 10

• FACTORS TAKEN INTO ACCOUNT WHEN DECIDING WHETHER A STEP IS REASONABLE

• Likelihood of the adjustment removing or reducing the disadvantage to the disabled person

• The nature of the employer’s activities and the size of its undertaking

• The costs the employer will incur and the resources/assistance available

• The disruption to the employer’s organisation

Dyslexia

Dyslexia

• Know the signs• Seek confirmation• Provide support• Use technology• Look at your practices• Consider individual needs• Seek specialist help• Increase awareness

Gender

Gender

• Equal pay• Glass ceiling• Legal situation• Recent developments

Race

• Arrangements for deciding who should be offered employment

• Terms on which employment is offered• Situations in which an employer refuses or

deliberately does not offer someone a job• Way in which access to opportunities for

promotion, transfer or training, or any other benefit, facilities or services is provided

• Dismissal or where someone has been subjected to any other disadvantage

Religion

Religion

• A dress code requiring employees to act against their religious beliefs risks being indirectly discriminatory, although it may be possible for an employer to objectively justify such a code

• Most religious observances can be accommodates in the workplace and employers should be reasonable in their approach to dress

• An employee who loses a claim for direct or indirect discrimination, but can show that they were treated less favourably than other people after making the allegations, might still bring a successful claim of victimisation

Sexual orientation

Sexual orientation

• The Employment Equality (Sexual Orientation) Regulations 2003 provide protection from discrimination for all employees, whatever their sexual orientation

• Good employers have developed anti-harassment policies and training programmes that incorporate sexual orientation, and many are starting to include orientation in workforce monitoring programmes

Smoking

Smoking

• A dismissal of an employee breaking the smoking ban is likely to be fair if the employer’s no-smoking policy:

• Specifies that smoking in an unauthorised place is breaking the law, and will result in disciplinary action and possibly dismissal

• Has been communicated to all employees and has been applied consistently

• Treating employees differently for breaking the smoking ban could result in claims for breach of mutual trust and confidence and constructive dismissal

National Dismissal Register

National Dismissal Register

• The use of the National Dismissal Register presents big risks for organisations in respect of:

• Discrimination claims• Data protection compliance• Defamation actions• Unfair dismissal claims• Damage to reputation if any of the above claims

are made

As a victim of discrimination

As a victim of discrimination

• Don’t let the situation fester• Keep a diary of incidents which record how

you felt as well as the bare facts• Stay cool and rational in any discussions• Follow the proper procedures if the

discrimination is unlawful• Remember that you are entitled to the

same support mechanisms as anyone else

Yes or no quiz

Yes or no quiz

• 1. Calling a colleague “the postroom boy” or the “girl from reception”

• 2. Fixing a maximum age limit for a job when recruiting

• 3. An unfair dismissal claim by a 68 year-old• 4. Giving a 40th birthday card that says “now

you’re over the hill”• 5. Awarding sabbaticals after 10 years’ service• 6. Employing young workers in a high street

fashion store to attract young shoppers

Equality Act

Equality Act 1 of 4• WITH EFFECT FROM OCTOBER 2010• The basic framework of protection against direct

and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport.

• Changing the definition of gender reassignment, by removing the requirement for medical supervision.

• Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers.

Equality Act 2 of 4• WITH EFFECT FROM OCTOBER 2010• Clearer protection for breastfeeding mothers;

Applying the European definition of indirect discrimination to all protected characteristics.

• Extending protection from indirect discrimination to disability.

• Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment.

• Applying the detriment model to victimisation protection (aligning with the approach in employment law).

Equality Act 3 of 4• WITH EFFECT FROM OCTOBER 2010• Harmonising the thresholds for the duty to make

reasonable adjustments for disabled people. Extending protection from 3rd party harassment to all protected characteristics. Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.

• Allowing claims for direct gender pay discrimination where there is no actual comparator. Making pay secrecy clauses unenforceable.

Equality Act 4 of 4• WITH EFFECT FROM OCTOBER 2010• Extending protection in private clubs to sex,

religion or belief, pregnancy and maternity, and gender reassignment. Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce. Harmonising provisions allowing voluntary positive action.

Case studies

Exercise B

Conclusion & Questions

Conclusion

• Summary• Questions

Discrimination June 2010

Business

Transcript of Discrimination June 2010