If you allow workplace discrimination to take place it will spread throughout your business like wildfire, and is likely to lead you to a costly and brand damaging employment tribunal. While you may initially believe that it’s easier to bury your head in the sand and hope that the issue resolves itself; if you take a proactive approach to handling issues, not only will you be meeting your legal obligations as an employer, you will also prevent the matter from progressing further.
An employee may choose to raise a grievance against you or take the case to an employment tribunal if they feel that workplace discrimination has escalated too far. Regardless, to whether an employee notified you of their complaint in the first instance, they still have the right to take the case to an employment tribunal.
You are also responsible as an employer for the actions that your employees take. So, unless you can prove that you have done everything that you could, within reason, to prevent discrimination from taking place, then you will also be liable during a grievance or employment tribunal. As an employer, you have a duty to investigate whether the complaint made against you or another employee is unlawful discrimination and to repair the situation.
Understand circumstances where discrimination can occur
In the first instances, you should understand the times and circumstances when discrimination can occur and the ways in which it can become out of hand. For example, if you, as an employer, fail to address a discrimination claim then it may set a precedent and example to others that such behaviour is acceptable and claims won’t be taken seriously.
As an employer, you have a responsibility to ensure that everyone is treated fairly regardless of their protected characteristics (gender, religion, age, ethnicity, parenthood, pregnancy, marriage, civil partnership, sexual orientation, etc.) or circumstances. For example, if you were to introduce a policy which was more favourable to some member of staff (this Government website gives the example of a benefit which is available to married employees, but not those in a civil partnership) then this would be classed as discrimination.
Discrimination could also include paying men and women different amounts when they are completing work which holds the same value, rejecting flexible working request unfairly or failing to adjust to accommodate a disabled worker. You could also discriminate against an employee by firing them if they made a discrimination allegation.
There are many other scenarios where discrimination can occur, and the Government highlights that discrimination can take place in the following ways:
- Direct discrimination – treating someone who has a protected characteristic less favourably than others
- Indirect discrimination – placing rules in place that apply to everyone, but put someone with a protected characteristic at an unfair disadvantage
- Harassment – unwanted behaviour which links to a protected characteristic, creating an offensive environment or violating dignity
- Victimisation – treating someone unfairly because they have complained about discrimination or harassment
Ensure you have a process and policies in place
Businesses often leave themselves vulnerable because they fail to have the correct policies in place or make them available for employees to view. For any business owner, creating these documents should be a priority, and they should be provided to employees when they begin with the company.
Ensuring that there is a formalised process in place, can help to reduce the number of claims which are taken to an employment tribunal. As a guide, a grievance policy should cover the following; the purpose of the procedure, informal discussions, statement of grievance, grievance meeting and appeal. While a policy is essential, it’s also important to ensure that employees feel confident that they can raise grievances, and be taken seriously, outside of the formal procedures.
As well as a grievance procedure, you should also ensure that you make clear the types of behaviour that aren’t tolerated in the workplace, as well as instances where employees should not be discriminated against. This should be set out in your equal opportunities policy and your harassment policy. An antidiscrimination policy should cover the following as a minimum:
- A statement that makes clear that as an employer you prohibit discrimination at work
- Definitions of discrimination and examples if possible
- Make clear that behaviour is not tolerated in instances where employees are representing the company
- Encouragement for employees to speak up against discrimination
- The disciplinary process or point out where this can be found
A disciplinary policy should also be set out and provide employees with the formalised process that a disciplinary will take.
All policies should make clear that you will take the necessary steps to investigate discrimination claims and take disciplinary action if appropriate, alongside preventing the situation occurring in the future.
Create cultural expectations
Your business should set out employee expectation in an employment contract and establish the cultural norms you wish to see take place in the workplace, to establish an organisation which is void of discrimination.
Managers and senior members of staff are vital in ensuring that this environment is established, alongside a strong HR presence. Staff should be aware of the signs of discrimination and harassment and be aware of how they should address such situations. Employees should also be trained in identifying instances where discrimination could take place in the future.
Handling a complaint
Your policy should set out the number of days in which you will respond to a complaint and be strictly adhered to. As soon as a complaint has been received through the formal channels, it should immediately be investigated. If the person the complaint has been made to is unable to investigate the claim because they feel unable to do so, you should refer the issue to another senior member in the workplace.
As well as interviewing the employee who has been affected, you should also interview anyone else who is involved in the complaint to discuss the situation. Discriminations claims should be handled confidentially, and if required with witnesses who are not involved in the claim. Any evidence relating to the claim should be gathered.
As an employer, you should remain neutral throughout the process, and if the complaint is against you, then you should use an external body to take care of the complaint. An investigator should be neutral and give a fair, impartial view based on the facts presented to them.
Following on from your findings, the appropriate action should be taken in-line with your disciplinary process. The complainant should also be notified of the results of the investigation; however, any details relating to personal information should be kept confidential.
Discrimination can be one of the costliest and brand damaging situations that your business faces, however taking a proactive approach to preventing discrimination from occurring and ensuring that you have the correct procedures and cultural expectations in place can protect your businesses from damages and ensure that employees are provided with a discriminatory-free workplace.