Equality law applies whatever the size of your organisation, whatever sector you work in or whether or not you use any formal processes or forms to help you make decisions.
An employer, is legally responsible for acts of discrimination, harassment and victimisation carried out by its workers in the course of their employment. It does not matter whether or not the employer knew about or approved of what the worker did.
Often the intentions or wishes of the person discriminating do not matter. What matters is whether they have acted unlawfully or not. So how can an employer prevent incidents of discrimination / harassment occurring or protect itself from claims if these incidents do occur?
An employer will not be held legally responsible for acts of discrimination or harassment by one of its workers if it can show that it took all reasonable steps to prevent the worker from acting unlawfully.
You can do this by:
- ·Having an Equality Policy in place which sets out what you expect of your employees in the context of their interactions with their colleagues, customers, suppliers etc;
- ·Marking sure that the Equality Policy is reviewed, at least annually; that it names the person within the organisation who is responsible for implementing the policy, and that that person does in fact lead the implementation of the policy;
- Clearly warning employees that any unlawful discrimination is treated with the utmost seriousness and is likely to be deemed to be gross misconduct, e.g. having appropriate references in the Disciplinary and Grievance Procedures (our clients can rest assured that the Mark Mason Employment Law Employee Handbook does these things!)
- Making sure that all employees are familiar with the Equality policy and any other relevant policies which are intended to prevent unlawful discrimination and harassment.
- Keeping adequate and up to date records which can be used to demonstrate that employees are aware of policies and procedures.
- Providing training to employees on equal opportunities and the Policy and refreshing that training at regular intervals. Records should be maintained.
- Handling complaints in a prompt fashion and treating them with the priority and seriousness that they deserve.
- Keeping an open mind when conducting investigations and treating the complainant with empathy, whilst always ensuring that the investigation progresses and difficult lines of enquiry are properly addressed rather than swept under the carpet.
Beware that to avail of the statutory defence, these steps must be taken before any alleged acts of discrimination occur. Also note that an Equality Policy which sets out the standards of conduct for employees but which has not been adequately communicated to staff is likely to attract criticism from an Employment Tribunal, similar to having no policy at all.
In the case of Croft v Royal mail Group, the employer took a number of steps to prevent the harassment of an employee who was undergoing gender reassignment to become a woman. These included agreeing to change her records, informing that the workforce that she was to be addressed as a woman and stressing their harassment policy. In that case the employer successfully defended a discrimination claim brought by the employee because they had taken reasonable steps to prevent unlawful discrimination from occurring.
Another example of the statutory defence operating in practice is the case of Caspesz v Ministry of Defence, which involved alleged harassment of a police officer by the Assistant Chief Constable to whom she reported. The employer was able to successfully defend the claims, as it had a dignity at work policy which had been conscientiously implemented.
If you implement good equality practices in your organisation, you should greatly reduce the likelihood that you will unlawfully discriminate. This should make you significantly less likely to face legal claims against your organisation for unlawful discrimination. Further, your staff will be educated in the behaviour expected of them and this will reduce the risk that they will unlawfully discriminate against, or harass, a colleague, customer or supplier, again, reducing the risk of claims. Taking these steps will ensure that your organisation will be able to defend itself against a discrimination claim, if, despite all your best efforts, discrimination or harassment still occur.
We can assist you in taking steps to ensure your Equality Policy is implemented. We can also provide Equality Law Training to employers, at a time and place to suit you and tailored to your organisation. Please do not hesitate to contact Mark or Sharon if you want to find out more about our Equality Law Training.