2007 has been the 'European Year of Equal Opportunities for All'. According to the European Commission, the aim was "to make people more aware of their rights to enjoy equal treatment and a life free of discrimination". Like many readers, you may have been unaware. If so, it is worth looking at what that means in an employment law context. This article explores how equal opportunities law may impact upon your business and what steps you can take to embrace equal opportunities.
The case of Ditton v CP Publishing (unreported) 2006, demonstrates the potential consequences for an employer neglecting equality issues - in this instance, in relation to sexual orientation.
The claimant resigned and claimed constructive dismissal and direct discrimination on the grounds of his sexual orientation. He had suffered insulting and malicious abuse on a daily basis (the sort of abuse that passes for 'hilarious banter' in many workplaces), which went unchecked by the employer.
Although he had been employed for only 8 days, the employment tribunal made an award of £118,000, which included an element for injury to feelings and psychological trauma. At nearly £15,000 per day of employment, that was no laughing matter for the employer.
'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.
Recently, the suspension of a teaching assistant for refusing an instruction not to wear a veil when assisting a male teacher in class in front of pupils was held to not to be discriminatory on the grounds of religion and belief. Although this requirement put her at a particular disadvantage due to her religious beliefs and so could arguably amount to indirect discrimination, the aim of raising the educational achievements of the children in the school was legitimate and the restriction proportionate to that aim. Where an individual receives less favourable treatment because of action taken to assert his legal rights then this will amount to victimisation. For example, if an employee complains of racial harassment and then misses out as a result in the next round of promotions. Harassment occurs where an individual is subjected to unwanted conduct that is intended to or has the effect of violating his dignity, or creating an intimidating, degrading or hostile environment. The 'hilarious banter' to which Mr Ditton was subjected could well fall into this category.
It is anticipated that the various legislative provisions will in due course be combined in a Single Equality Act. However, this may well be more of a paper-exercise than a substantive change to the law, and some would say that only the lawyers will gain by rearranging the law into a new Act.
All of the law relating to equal opportunities allows for positive action. This means affording members of a group access to facilities for training that would help prepare them for particular work and encouraging members of a group to take advantage of opportunities for doing particular work. Whilst the aim of positive action is to increase diversity in the workplace, it does not allow an employer to discriminate in the actual selection of the candidate for employment or promotion, the terms and conditions of employment or the selection of employees for dismissal.
Exceptions to the rule are the duty to make reasonable adjustments under the Disability Discrimination Act, or to justify direct discrimination on the grounds of age. However, employers will be hard pressed to argue that age is a genuine occupational requirement for the role. Short of a theatre company requiring a more elderly actor to play King Lear, objective justification will be hard to find.
Public sector bodies are under a duty to eliminate discrimination on the grounds of race, gender and disability when exercising their functions. Public sector bodies must also identify equality goals, show the action they are taking to implement them, publish, monitor and review these goals.
A note of caution for private companies tendering for public sector work. Tenders have been rejected solely on the basis of inadequate equality procedures within the private company notwithstanding the excellence which may be demonstrated in the rest of the tender submission.
There are a number of action points for companies seeking to ensure compliance with equal opportunities law. We strongly recommend that employers 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. Given the potential for claims, employers need to have robust procedures in place. Any investment in training in equality will be undermined if this is not backed up by appropriately drafted equal opportunities policies and monitoring. If you are still not sold on the whole concept then there are some excellent (and free) best practice guides, such as the one produced by ACAS.
There are a number of benefits for those employers who embrace equal opportunities. These include being able to rely on the 'statutory defence' of having taken such steps as were reasonably practicable to prevent the discrimination. Reasonable steps include: having and implementing an equal opportunities policy, making all employees aware of the policy and its implications and training staff in equal opportunities. 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 a 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.
If you are feeling that you could have done more to embrace the 'European Year of Equal Opportunities for All' then 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 get a head start and ensure that your business has taken appropriate steps to reduce the risk of discrimination based claims.
Sheila Gunn is a partner specialising in employment with UK law firm Shepherd and Wedderburn