'Equal opportunities' is a term used to promote best practice standards under legislation preventing discrimination on six grounds - sex, race, disability, sexual orientation, age and religion or belief. This extends to fair practice in job advertising, conditions of employment, treatment and recruitment. This article explores how equal opportunities law may impact upon your business and what steps you can take to embrace equal opportunities in 2008.
Employers must not discriminate unlawfully. UK law does not generally allow positive discrimination, but there are two main exceptions to this rule. Firstly, limited forms of positive action relating to training and encouraging access to opportunities may be allowed if an employer can show that a particular group is under-represented or at a particular disadvantage in taking up a type of work. Secondly, positive discrimination in favour of disabled applicants and employees is not prohibited by the Disability Discrimination Act 1995 and, indeed, may be required if the employer is to comply with its duty to make reasonable adjustments.
Public sector bodies are under a positive duty to eliminate discrimination on the grounds of race, gender and disability when exercising their functions. To comply, public sector bodies must identify equality goals, show the action they are taking to implement them and publish, monitor and review these goals. Private companies tendering for public sector work should note that tenders have been rejected solely on the basis of inadequate equality procedures within the private company, notwithstanding the excellence demonstrated in the rest of the tender submission.
Equal opportunities law is constantly changing. This year, the European Court of Justice is expected to rule on two key cases, which have the potential to prevent employers from forcing employees to retire at any age and to extend disability legislation to make it unlawful to discriminate against someone who is associated with a disabled person, for example because they care for a disabled person. Additionally, the Sex Discrimination Act 1975 is due to be amended this year, improving the rights of women on maternity leave. These potential changes could impact heavily on businesses and it is important for employers to be aware of their changing obligations and duties.
To ensure compliance with equal opportunities law and the ability to rely on the 'statutory defence' in any proceedings, employers should put in place, and regularly update, appropriately drafted equal opportunities policies and monitoring procedures and communicate them to their employees. But policies on their own are not enough; staff should also be trained on equal opportunities.
We strongly recommend that companies train their managers (who are, after all, in the front line) regarding both legal obligations and good communication skills, so that they are suitably equipped to manage potential flashpoints with staff, or, even better, to manage their staff proactively in such a way that avoids claims being raised in the first place. There are some excellent (and free) best practice guides available, such as the one produced by ACAS.
The benefits for employers who embrace equal opportunities include being able to rely on the 'statutory defence' of having taken such steps as were reasonably practicable to prevent the discrimination. It may also lead to a wider pool of applicants for jobs and improvements in employee retention. Having a diverse workforce will, in general, result in a broader range of skills and ideas. Embracing equality and diversity may also help build the reputation of the business and may attract a wider range of clients. And yes, for the more cynical (or war-weary), it could also save you a lot of money by avoiding claims.
There is no limit to the amount of damages that can be awarded to a successful applicant in a discrimination claim. Last year's tribunal statistics showed increasing numbers of claims, with maximum awards of over £100,000 for discrimination claims. We may also see a surge in age discrimination and other employment claims this year, if the credit crunch and general economic turbulence lead to an increase in dismissals.
We would urge you to have a look at your policies and ensure your managers (and ideally your staff as a whole) are given the chance to participate in equal opportunities training. After all, 2008 is the 'European Year of Intercultural Dialogue' (don't shoot the messenger), so why not ensure that your business has taken appropriate steps to reduce the risk of discrimination based claims.
Sheila Gunn is Head of Employment at UK law firm Shepherd and Wedderburn