Firms that don't deal with discrimination on the grounds of sex, race, disability and - from October - age, risk being hauled up by employment tribunals
Employment tribunals are damaging to a company's reputation, time-consuming and costly. According to the latest report from the Employment Tribunals Service, a total of about 86,000 claims were registered in 2004/5. The majority of these were for unfair dismissal, with discrimination claims accounting for nearly 20,000. The highest compensation awarded for unfair dismissal last year was £75,250 with one sex discrimination case receiving £179,026.
On 1 October the biggest change in employment law for 30 years will come into force when the Employment Equality (Age) Regulations 2006 are introduced. They follow a similar structure to other forms of discrimination law in that there are four types of discrimination - direct, indirect, victimisation and harassment.
Employers will need to review their equal opportunities policies as well as any other policies and procedures that impact on age, such as recruitment. Phrases in advertisements such as "10 years' experience" are fairly common now. However, after 1 October such a phrase could give rise to a claim unless the employer can justify why 10 years' experience was the minimum required given that this criteria has a disproportionate impact on younger workers. In the advert it would be better to refer to a person specification focusing on the skills and abilities you are looking for. Similarly, phrases such as "graduated in the past three years" have a potentially discriminatory effect.
In a recent survey of human resources professionals Thomas Egger found that 74% admitted to discriminating, either consciously or unconsciously, on the grounds of age. In addition, only 7% of those questioned were confident that the internal measures they had put in place would ensure compliance with the rules. With only six months to go before the legislation is in full effect, clearly practices have to change.
Whether discriminating on the grounds of age, sex, disability or race many employers put themselves at unnecessary risk of employment claims because they do not implement appropriate policies and procedures. Some employers are unaware that they may have a legal liability for the actions or crimes committed by their employees in the course of their work. This is known as vicarious liability. For example, if an employee commits an offence under the Sex Discrimination Act, the employee making the complaint can claim against the employer in addition to the colleague who committed the act.
In these situations, the employee will usually still claim against the employer because the employer is more likely to have the financial resources to pay any compensation awarded to the employee or any agreed settlement of the claim. As a defence the employer will need to show that all reasonable steps were taken to prevent employees committing the offending act. Tribunals will consider, among other factors, whether the employer issued a policy statement regarding the behaviour, for example an equal opportunities policy prohibiting sexual harassment. The tribunal will look at whether that policy was communicated effectively to all employees and if the employees received any relevant training to implement the policy.
The highest compensation awarded for unfair dismissal last year was £75,250 with one sex discrimination case receiving £179,026
In 2004/5 sexual discrimination led to the highest number of discrimination claims with nearly 12,000 cases registered. This is more than twice as many as disability discrimination, the next most prevalent form of discrimination, and over three times the number of race discrimination claims.
In a case six years ago involving East Riding of Yorkshire council a woman claimed she was subjected to sexual assaults and threats by her colleague. The employer accepted that it was potentially liable because the actions happened in the course of her employment.
The tribunal found that the employer had disciplinary, grievance and personal harassment policies in place and that it had communicated these to all employees. The tribunal found that the council had taken such steps as were reasonably practicable to prevent him from continuing an act of discrimination by issuing a harassment policy. The case was appealed and the Employment Appeals Tribunal found that the council could have taken further steps, in addition to the implementation of the policy, to prevent the harassment and so the employer was found to be liable.
However, the case does show procedures can potentially protect employers from claims in a tribunal. If taken to a tribunal, by formulating an effective policy, backed up through training and monitoring, a company could provide vital evidence that it does not condone discriminatory practices. It would also demonstrate that the company has taken reasonable steps to prevent its staff discriminating against or harassing employees.
Frances Strickley is a solicitor at Thomas Eggar. Email: firstname.lastname@example.org