Does your employment discrimination law need a refresh?

The pandemic has given rise to a global rethink on workplace wellness. From changes in flexible working to rulings on personal belief, mental health is now taking centre stage. This puts added pressure on employers to ensure they are protecting workers’ rights.

Worker’s rights UK: The Equality Act

The Equality Act 2010 protects employees from four types of discrimination:

Direct discrimination

This is the most obvious form of employee discrimination. It involves treating employees less favourably or denying them privileges based on a ‘protected characteristic’, such as their race.

Indirect discrimination

This is when workplace schemes or rules indirectly prevent certain members of staff from having the same rights as others. For example, if employees are made to take their breaks in a specific area with no disabled access, this could indirectly discriminate against wheelchair users.

Harassment

This may constitute some form of workplace bullying or name-calling based on a personal characteristic, such as your gender. An example might be gender-based pet names.

Victimisation

This is when employees are treated unfairly after making a complaint. A good example would be unfairly dismissing a whistleblower.

Protecting workers’ rights: circumstances to be aware of

The Equality Act was passed in 2010. It is an update to acts including the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995. Under the act, employers cannot discriminate on the grounds of:

• Age
• Disability
• Gender reassignment
• Marriage status
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation.

While UK employment law has not changed since the act was passed, there have been many landmark cases in the headlines in recent years.

So, what circumstances should employers be aware of when treating their employees equally?

Ageism in the workplace

According to the Ministry of Justice, age discrimination tribunals increased by 74 per cent during the pandemic. This is largely down to the furlough scheme, with the over-50s being disproportionately affected by subsequent redundancies.

Similarly, older employees may struggle to find work after dismissal. Josie Broadstock, HR Consultant at Altum HR, says: “Redundancies have been a tragic and unwelcome consequence of the pandemic. Staff need to be judged on merit, not age. To prevent unfair dismissal claims, all employees should have a rigorous and fair redundancy consultation, including reasons for dismissal, timescales and ways to appeal.”

Dress codes

With more of us working from home, workwear has taken an informal approach. However, discrimination cases continue to make headlines on the grounds of sexism and religious discrimination.

By law, employers cannot have a dress code for one gender. It must apply to all employees. So, for example, it would be illegal to enforce high-heeled shoes for women and have no rules for men. Dress codes can legally differ for men and women.For instance, women may wear skirts and men trousers, but they must not put “unfair burden” on any employees.

Josie says: “We have seen cases where makeup is part of the women’s dress code. This would not constitute an unfair burden, but asking somebody with a highly physical role to wear heels would.”

Likewise, religious considerations could present discrimination cases if employers do not respect a person’s beliefs. A workplace might have a no-head-coverings policy, for example, but an employee may wish to wear one on religious grounds. An employer must legally respect this unless they can prove it contravenes the Health and Safety at Work Act 1974.

Gender reassignment

In a landmark trial, a consultant won her appeal after she was dismissed for tweeting her “gender-critical” beliefs. Her tweets stated that “sex is immutable and not to be conflated with gender identity”. Ms Forstater was dismissed from her role at the Centre for Global Development after it was ruled that her tweets did not satisfy the Grainger Criteria.

The Grainger Criteria states that a person must genuinely believe the view; the view must be current and serious, and it must be “worthy of respect in a democratic society”. However, after the appeal, the Honourable Mr Justice Choudhury said that Ms Forstater’s beliefs were protected by the Equalities Act as they did “not seek to destroy the rights of trans persons”.

While this may sound like a step back for the trans community, it may help to clarify some grey areas with employee discrimination. The Equality Act 2010 protects transgender people from discrimination. Likewise, those who identify as a different gender from that which they were born with would be protected under the Grainger Criteria.

Josie adds: “Employers must ensure they are inclusive. From employee handbooks to gender-neutral washroom facilities, employers must stay up-to-date.”

Vaccination status

The notion of “no jab, no job” stole headlines this year as employees fought for their freedom to exercise choice. By law, employers cannot enforce vaccinations on members of staff.

However, Senior HR Consultant Tara Phillips says that employers are within their rights to suggest the jab on the grounds of health and safety. Tara says: “By law, employers must protect the health, safety and welfare at work of all their employees so far as is reasonably practicable. This is particularly pertinent in settings with vulnerable people. In terms of safeguarding, a jab might be considered equal to PPE.”

However, a staff member could cite the Grainger Act and say the vaccination genuinely goes against their beliefs. Likewise, they could refuse on medical grounds.

To stay safe, employers should carry out a risk assessment. They should provide alternatives for employees, such as social distancing. They should also have a digital COVID-19 policy that is updated in line with changing legislation.

The takeaways

While the principles of employee discrimination remain the same, employers should be cautious. Unforeseen circumstances such as the pandemic may cause employees to rethink their policies, so they should always have robust documentation in place.

It’s worth noting that application fees for employment tribunals were abolished in 2017, while changes such as the #MeToo movement have seen more claims come to light. As ever, employers should have strict policies in place to protect their staff and prevent the four points of discrimination.

For more help with discrimination policy documentation, contact Altum HR today.