Written by Kate Sutherland and Deborah Alexander
Tomorrow is CIPD's annual Scotland conference and Harper Macleod is proud to be sponsoring this event. There are many interesting topics being discussed at the conference and one such topic is "Ending racism at work – why fair and inclusive workplaces drive organisational success". In this blog, we are therefore examining some of an employer's obligations under the Equality Act 2010 during the employment relationship and how these can support the creation of an inclusive workforce.
The Equality Act 2010 (the 'Act') provides a legal framework that seeks to protect people from discrimination, including in the workplace. The Act seeks to protect individuals from discrimination based on a 'protected characteristic'. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
At the start of the employment relationship: recruitment
The Act effectively makes it unlawful for employers to discriminate against job applicants because of a protected characteristic. This protection applies with regards to the arrangements the employer makes for deciding whom to offer employment; the terms on which an offer is made; or not offering a person employment (for example where an employer rejects a job candidate for a reason other than their qualifications and experience with the real reason being or relating to a protected characteristic of the job applicant).
Arguably job adverts form part of the arrangements an employer makes for deciding whom to offer employment.
When drafting a job advert, employers should word it in an objective way, avoiding language which suggests that people with certain protected characteristics cannot apply or will not be considered if they do apply. For example, gender specific terms (such as 'postman', 'waitress' or 'barmaid') should not be used as this suggests the role will only be available to an individual of a particular sex. Where there are specific requirements for a role which need to be included in an advert (i.e. the ability to speak Italian), the requirement should be expressed as being for an Italian speaker, rather than an Italian person.
There will be circumstances in which an "occupational requirement" exists, such that a job advert can be ostensibly discriminatory. For example, considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities. Specific requirements need to be satisfied for an "occupational requirement" to exist.
During the interview process, employers should ensure that those conducting them do not ask questions which could be considered discriminatory (for example, asking a woman if she plans to have children or an older candidate when they intend to retire).
During the employment relationship: working hours, flexible working and time off
Throughout the employment relationship, an employer is under an obligation to not discriminate against its employees on the grounds of a protected characteristic and this includes with regards to working hours, flexible working and time off. The nature of an employer's obligations under the Act can mean that they need to take positive action to avoid discriminating against an employee.
While there is no requirement under the Act for an employer to provide time off for religious observance or to agree to a change of working pattern to allow an employee to pray at a specific time, a refusal to accommodate such requests without a justification could result in a successful claim for indirect religious discrimination in certain circumstances.
Employers should also consider whether their working practices adversely affect groups who possess certain characteristics. For example, it has been successfully argued that as women tend to have more childcare responsibilities than men, insisting on long and inflexible hours (without a justification) can, in some cases, amount to indirect sex discrimination on the basis that this adversely and disproportionality effects women.
Employers have a duty under the Act in certain situations to make reasonable adjustments in respect of disabled employees. One situation in which this obligation will arise is where an employer imposes a provision, criterion or practice and it puts an employee with a disability at a substantial disadvantage as compared to someone who is not disabled.
All employees have the right to make a flexible working request, however generally speaking there is no requirement on employers to grant a request (see our recent blog on flexible working requests for more information). However, a refusal to grant a flexible working request of a disabled employee could amount to a failure to make reasonable adjustment under the Act depending on the circumstances.
During the employment relationship: training, development and promotion
The provisions of the Act prohibit employers from discriminating against an employee in the way it affords an employee access, or by not affording an employee access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service.
Employers are generally able to decide whether to offer training to their employees, and when they wish to do so; what training to offer and to whom. Where an employer selectively offers opportunities for training or development, they must do so without unlawful discrimination.
Where training is offered on a large scale, employers should consider a flexible approach to avoid unfairly excluding certain groups of employees. For example, if all training is residential, or requires time away from home, this may be more likely to disadvantage part-time employees or those with caring responsibilities, so additional or alternative training should be offered to reduce the risk of discriminating against certain groups (e.g. women).
Employers must not deny an individual a promotion because of a protected characteristic. For example, a woman on maternity leave must have the opportunity to apply for and be considered for promotion in the same way as any other worker.
Employers should be careful to avoid making assumptions when considering promotions. For example, assuming that a woman with children will be uninterested in a demanding senior role, and therefore unsuitable for promotion, would likely constitute unlawful discrimination, as would failing to consider a 64 year old employee for promotion because of an assumption that they will retire soon.
At the end of the employment relationship: dismissal, redundancy and retirement
An employer's obligations under the Act continue to apply up to and including the termination of employment (and in some cases, continue beyond termination). Even in situations where there is a clear and justifiable reason for terminating the employee's employment, employers must also ensure that the process they follow is free from discrimination.
An employer looking to dismiss an employee must ensure that the dismissal does not constitute less favourable treatment because of a protected characteristic. For example, an employer cannot dismiss an employee because she has become pregnant, or because of a disability.
It's worth remembering that while an employee requires two years' service to raise an unfair dismissal claim, they do not need two years' service to raise a discrimination claim following their dismissal.
Employers have an obligation to ensure that any redundancy procedure does not unlawfully discriminate against individuals with a protected characteristic. For example, where a disabled person is included in a selection pool for redundancy, and attendance is considered as part of the selection process, absences connected to the individual's disability should be disregarded.
It may be direct discrimination to select an employee for redundancy purely because they have a low redundancy entitlement based on their age (albeit direct age discrimination can in certain circumstances be justified).
The Act prohibits employers from insisting that an employee retires simply because they have reached a particular age (this includes because they have reached state retirement age). Employers can however justify direct and indirect age discrimination if it can be shown that it is a proportionate means of achieving a legitimate aim – for example where a high level of fitness is required to undertake the role for health and safety reasons.
We have not covered all of the obligations of an employer under the Act but the above should give you a good idea of the continuing nature of an employer's obligations under the Act throughout the employment relationship. In theory, an employer who complies with their obligations under the Act will hire and retain a more diverse workforce.
Non-discriminatory recruitment, training and promotion processes, and working practices should contribute towards an organisation which recruits and retains employees from a wide demographic, and there is clearly a benefit in recruiting and retaining the best employees irrespective of their gender, age, sexual orientation, ethnicity or nationality, religion or belief, disability, educational/social background, etc. Not to do so significantly reduces the pool of talent from which an organisation can recruit, and therefore hampers growth, employee morale and ultimately profits.
How can we help?
Understanding your obligations under the Equality Act 2010 and ensuring you comply with them is not always straightforward. Our employment team can provide advice on all aspects of an employer's obligations under the Act, including in particularly tricky scenarios such as an employee being absent on long-term sick leave. Our employment team can support you by preparing appropriate equality policies and advising you on what training you should be providing your employees to avoid them discriminating against colleagues.
- Glasgow: 0141 221 8888
- Edinburgh: 0131 247 2500
- Inverness & Highlands: 01463 798 777
- Elgin: 01343 542 623
- Shetland: 01595 695 583