Employment Law: How to avoid workplace Discrimination Claims

Top tips from an expert who has advised both employers and employees for over 20 years.

When acting for employers, that advice is often proactive, seeking to minimise any risk that employer may face should an employee bring an Employment Tribunal claim. Discrimination claims are once such area. I also act for employees in such claims, and it is often the case that employers with no equality and diversity policies in place do badly at the Employment Tribunal. Some employers have those policies in place, but do not implement them in any meaningful practical way, often viewing equality and diversity as a marketing tool, rather than a workplace relations one, and also lose at the Employment Tribunal.

An employer that is proactive about any workplace discrimination issues will be much better placed, should any claim arrive.

How is any reasonable employer best placed to have a diverse workplace and avoid Employment Tribunal Claims for discrimination?

1) Engage with staff early about any issues that might, if not dealt with, lead to a discrimination claim, eg any disability, preferred working patterns, anything booked coming up etc

This is important and often avoided by employers because they think that if they are not told, they can’t be criticised later. Using disability as a specific example, the duty to make reasonable adjustments applies if an employer knew or ought to have known about a disability. It is much better for the employer to be proactive when an employee starts, and engage with them on the issue of adjustments.

2) Have a full Equality and Diversity Policy in place together with an anti-harassment/bullying policy

Setting out the policies and procedures that inform employees what is expected of them in terms of behaviour, and what to do if they feel they are discriminated against is incredibly important. By having such policies in place, with a practical means for employees to raise concerns, serves two purposes -it can resolve issues more effectively and it can assist an employer defending, for example, a sexual harassment claim, when it can be shown that they put the best procedure in place that enable such actions to be stopped and prevented in future. It goes without saying that the employer must have more than a policy. That policy must be regularly reviewed and must work in practice. Simply telling employees you are against discrimination will not be enough. The policies must work when tested.

3) Have some sort of training on those issues, even if once a year

Once the policies are in place, staff must be aware of them in practical terms. In this regard, equality and diversity training is important, and employers should do this annually to make sure staff understand what is expected, what behaviour is unacceptable, how to raise any concerns, and how concerns should be dealt with.

4) Have a confidential complaint channels as part of your policies – if you are small, use an external provider

Employees who feel they are being discriminated against, particularly those who are being harassed, need to be able to raise those allegations confidentially. This is hard with a small business. Employers should have a confidential, allocated person available to deal with any such complaints. It might, in some situations, be better for a small employer to appoint either an HR Advisor or Employment Solicitor to investigate.

5) Investigate all allegations of discrimination irrespective of source and or who the complaint is about – don’t fail to investigate good performers

I have dealt with many discrimination allegations for clients (employee and employer) over the years. One factor that often applies is employers are reluctant to criticise employees who are good performers, even if they are accused of discrimination. This is not an acceptable practice, and an employer will lose at the employment tribunal if they take this course of action. Keeping a well performing employee who is behaving in a discriminatory way will be hugely negative for the business, not just in liability terms but also in reputational terms. Employers should be fully prepared to discipline any employee for disciplinary acts, irrespective of the value they hold to the business.

6) Type detailed minutes of all internal meetings and/or discussions where discrimination is an issue, give feedback on any non serious investigation and/or training issues

All allegations, including interviews connected with any investigation, should be recorded. This will enable a clearer thought process on any investigation, and also be evidence to defend that investigation if a claim is raised.

7) Seek regular pro-active advice from an employment solicitor – either through a retainer, or by contacting when an issue arises

Employers should also always be alert to any issues involving departing staff, and always take proactive advice in how to deal with these issues. The earlier this is done, the better the outcomes are likely to be.

Alex Jones
365 Employment Law Solicitors
Tel: 01903 863284
ajones@365employmentlaw.co.uk
www.365employmentlaw.co.uk