Employment Law: equality and diversity in the modern workplace

365 Employment Law explains how legal protections and cultural shifts have evolved over the past two decades.

As an employment law specialist for over 20 years, the issue of equality and diversity in the workplace has evolved over time – in terms of both the legal protections afforded to workers and the cultural shift in attitudes to workplace equality.

Whilst those cultural attitudes have evolved, for those workers who are on the receiving end of discriminatory acts it is often harder than ever, in practical terms, to enforce the rights they have.

Discrimination and the law

The rights that workers have in respect of non-discrimination are under The Equality Act 2010. This piece of legislation, when brought into law, largely combined the various non-discrimination rights under legislation such as the Sex Discrimination Act, Race Relations Act, and Disability Discrimination Act into one piece of legislation. Whilst it updated some interpretations of rights, based on case law, it was largely aimed at harmonising the various rights that had been brought in over the previous 10 or so years. Other than the three original rights (sex, race and disability), prior to the early 2000’s, there was no discrimination protection in place, for example, on grounds of sexual orientation or age. This was remedied by multiple regulations in that period and harmonised under the Equality Act.

The Equality Act provides protection from discrimination for workers, employees and, in some cases the self-employed, on grounds of nine “Protected Characteristics”, namely sex, race, disability, age, religion and belief, sexual orientation, gender reassignment, marriage/civil partnership and pregnancy/maternity.

For obvious reasons, some of those protected characteristics apply to all, and some to qualifying workers i.e. disability, maternity, but the simple position is that workers are protected from discrimination on grounds of those protected characteristics. That discrimination applies to both direct discrimination, which cannot be justified in law (other than for age), and indirect discrimination, which can only be objectively justified as a defence. The rights relating to disability also have a duty, on the employer, to make “reasonable adjustments”, and in respect of maternity rights, these overlap with sex discrimination rights, particularly in respect of flexible working.

Practical considerations

I often deal with employers who have had employment tribunal claims brought against them for alleged acts of discrimination. This is from both the perspective of defending those claims and bringing them for workers. Whilst some acts of discrimination are aggressive and obvious, many are not, and some of the examples that I see are easily avoidable. I have specifically seen the following examples come up regularly:

1) “But we have all of the policies in place”

Employers often obsess over policies, particularly relating to non-discrimination. They spend a lot of time putting them in place, and often train staff on them. This is where the problems start for them, because they then do not consider actual discrimination in the workplace, the triggers for it, and when it has taken hold. I have often seen examples where despite obvious evidence of workplace discrimination, the employer refuses to accept it can be occurring, because they have the policies in place that indicate it is not tolerated. It is good practice for employers to bring in someone external, even on an annual basis, to road test their policies through some practical examples.

2) “We have followed the flexible working policy”

Subject to qualifying criteria, employees have the right to request flexible working through a process set out in law. That process is only the right to request flexible working, not have it granted. Employers often, as a result of that, have a silo mentality about a flexible working request. If an employee requests flexible working, through the process or otherwise, and the reason for that request is for a protected characteristic, the employer needs to engage with the reality of that request, and not rely on the process as being one of request only. I have seen lots of examples where employers refuse a flexible working request, because the process lets them – without understanding that any such refusal could be discriminatory. This is particularly prevalent over the issue of employees returning to work part-time after maternity leave, or in respect of reasonable adjustments as a result of disability. I recently represented an employee who had made a flexible working request, which had been refused under the policy, that by its refusal was a failure to make reasonable adjustments due to that employee’s disability, and therefore discriminatory. Even up to the final hearing, the employer could not understand how the discrimination had arisen, when they had complied with the flexible working request process.

3) “We treat everyone the same”

The whole purpose of discrimination legislation is to even the playing field. I see a number of employers who have a starting position of treating everyone the same, which then causes indirect discrimination e.g. “we don’t have flexible working and everyone is treated equally”, or “we don’t need to maintain the lift to the third floor, and everyone is expected to take the stairs”. This type of positioning is classic indirect discrimination i.e. on the face of it, everyone is equal but, in practice, it affects one minority group on grounds of their protected characteristic. In law, indirect discrimination can of course be objectively justified, but employers need to think about that in advance.

Enforcement issues

Whilst the position in law is one of protection for employees, and a means of resolution for both employer and employees, the practical reality is more complicated. The Court and Tribunal system has been brought to its knees by a decade of cuts, and it can be up to a year before even basic employment rights come before an Employment Tribunal. This is not ideal for either employees or employers, as the issue hangs over them for an extended period. With that in mind, parties can often engage in practical and constructive settlement discussions, but if that is not possible, the issue is often there for extended periods.

Modern working

The issue of modern working practices, including remote working, was not necessarily envisaged at the time the Equality Act came into force. A specific update of the law as regards non-discrimination is needed as, without it, Employment Tribunals will interpret obligations differently, and conflicting legal authorities will arise. Chaos also awaits in December 2023, when the Government’s legislation to remove all retained EU law from UK law happens. This could cause real problems for employers, as certain EU regulations eg relating to part-time workers, and holiday rights could cease to be law in the UK. This could lead to a two-tier workforce (most will have existing contractual rights), and lots of litigation about staff not offered basic rights that others already have. At this stage, it is a case of waiting to see what will be retained!

The simple position is that employers who consider discrimination issues in advance, and how they work in practice, will always be better placed than those who don’t!

Please always take advice on any staff related issues.

By Alex Jones, Managing Director
365 Employment Law

www.365employmentlaw.co.uk