What does the Equality Act mean for employers?
The Equality Act 2010 was and still is one of the most important pieces of legislation for employers and employees. It is concerned with discrimination and harassment in respect of nine protected characteristics, namely: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
The Equality Act gives protection against work-related discrimination, making it unlawful for an employer to discriminate against its job applicants, employees and former employees. If it does so, it will be liable for its actions. In addition, employers may also be held liable for the wrongful actions of their employees or agents. This is because under the Equality Act, anything done by an employee in the course of their employment is deemed to be an act done by the employer. This is called vicarious liability. The only defence available to this for an employer is if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act, known as the “Reasonable Steps” defence.
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What obligations does the 2010 Act impose on employers?
The Equality Act made it unlawful for any discrimination to take place, meaning that employers now have an ongoing obligation to make sure it does not happen in the workplace or when they recruit. As a result, it is important that businesses have the necessary training and appropriate policies in place to prevent discrimination and for dealing with it if it does happen. If discrimination does occur in your workplace, and you are made aware that it has happened, then you need to act immediately. If you fail to do so, you will potentially be leaving yourself open to a claim for discrimination.
All employers need to have a fair disciplinary process in place for dealing with discriminatory behaviour. If an employee is suspected of discrimination, they should be made aware of the allegations against them and that a disciplinary investigation has been launched. An investigation, which includes interviewing the employee, any witnesses and collating evidence, should be carried out by a designated investigating officer. They will decide if there is enough evidence for the matter to proceed to a disciplinary hearing.
‘It isn’t just employees who can bring claims, but job applicants as well’
In advance of the hearing the employee should be warned of the potential outcomes of the hearing and advised of their right to be accompanied by a colleague or trade union representative. At the hearing the employee should be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. Once all the evidence has been assessed by the chair of the hearing, the employee should be informed of the hearing outcome in writing. In circumstances where the conduct is found to amount to gross misconduct, this is likely to result in the employees’ summary dismissal. In informing the employee of the hearing outcome the employee should also be given a right to appeal.
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How does the Equality Act affect recruitment?
The introduction of the Equality Act drastically affected recruitment and that remains the case to this day. Ultimately, if you discriminate against an applicant or an employee on grounds of a protected characteristic, then that is unlawful and you open yourself up to claims. Remember, it isn’t just employees who can bring claims, but job applicants as well. This has had a huge impact on the recruitment process. Employers used to ask applicants if they had any medical conditions and assess how much time an employee had taken as sick leave, but employers can’t do that anymore as sickness could be linked to a disability. As a result, our advice is that you shouldn’t ask applicants about their race, religion or health. Nowadays it is common for applicants to be asked to fill out an equal opportunities monitoring form after they have been shortlisted, but this should not be given to those who are involved in the recruitment process. Decisions as to whether a job offer is made should be based purely on the skills and qualifications of the applicants.
There are exceptions within the Equality Act where an employer may have a defence to an act of direct or indirect discrimination which is otherwise unlawful. One such exception is “positive action” which an employer may take where persons who share a protected characteristic suffer a disadvantage, have particular needs or are disproportionately underrepresented. Employers can then take certain actions to enable or encourage those with the protected characteristic to minimise the disadvantage, without opening themselves up to claims for discrimination.
What happens if an employer breaks the Equality Act?
If an employer is found to have discriminated against their employee, then there is no limit to the amount of compensation that can be awarded. The calculation of compensation for discrimination is based on the loss the claimant has suffered. The aim is to award a sum of money that will put the claimant in the position they would have been in had the wrong not taken place.
In one recent case, a prison officer was awarded his career-long losses after being diagnosed with PTSD, depression and symptoms of paranoia following years of harassment related to his sexual orientation or perceived sexual orientation. The expected cost of his future earnings amounted to an estimated £2 million.
While an employee’s case can go all the way to a full merits hearing, most cases tend to be settled way before they ever see a tribunal. The main reason for this is that the reputational damage these cases can cause is often more damaging than any monetary financial settlement. Tribunals are held in public, meaning the media can turn up and report on anything said. As a result many cases are settled beforehand.
The Equality Act drastically changed employment law for employers and employees by giving the latter more rights not to face discrimination in the workplace. Despite being around for more than a decade, employers still fall foul of it and face claims for discrimination. Following the guidance in this article will go a long way to helping you keep within the law and avoid expensive claims.
Katie Maguire is an employment law partner at Devonshires
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