Employment e-Brief: What is a business’s role in establishing equality?

Wednesday 9th December 2015

Clients sometimes tell me that they think equality law has gone too far. They say they are frustrated at people playing a “race card” or “gender card” to get ahead and that, in this day and age, people should be judged on their own merits.

Whilst it is true that a very small minority of people may abuse laws for their own purposes, it is equally true that discrimination still does happen and needs to be stopped.

People can only be judged on their own merits if decision makers do not allow their own biases to influence them.

That’s right – everyone has biases. Actions are influenced by our own internal values, beliefs and background – our own perception of the world. This can lead to both prejudices and stereotypes.

Diversity and inclusion requires us all to challenge our own thinking, feelings and beliefs. To recognise that the world is bigger than the small part we have seen and we should always start with a blank page – and treat people fairly as individuals.

The Equality Act 2010 sets out that we should all be treated as equal, regardless of race; gender; religious belief; age; sexual orientation; disability; pregnancy or maternity; gender reassignment; and marital status. It is a poor reflection on society that these issues still have to be listed in legislation.

The news this week is a stark reminder of the need for protection.

US Republican presidential hopeful Donald Trump’s anti-Muslim rhetoric has made international headlines. The Pentagon has warned that it even undermines US national security by boosting support for the Islamic State (IS) group. He seeks to stereotype all Muslims with the stigma resulting from a small number of IS idiots. Alarmingly, he received a boost in the polls showing his views found support amongst his party.

World heavyweight champion boxer Tyson Fury has made controversial comments about women and gay people which have led to calls that he should be stripped of his title. He is a role model for boxing fans who may be influenced by his prejudiced views.

It is an unfortunate fact that equality laws are needed and are likely to be needed for decades to come. During that time people will continue to be educated and warned of appropriate standards of behaviour, but also influenced by external factors such as the rise of IS.

Employers can be liable for discrimination, victimisation and harassment committed by their employees during their employment. It does not matter whether the employer knew about their employees’ actions or approved them. In fact, the burden of proof can shift in such cases, forcing employers to prove that discrimination did not happen. There is no presumption of innocence until proven guilty.

There is a positive obligation on all employers to help set standards of behaviour in their workplace and educate employees on appropriate standards. As an incentive, employers will have a defence to actions committed by their employees if they can show that they took all reasonable steps to prevent discrimination, harassment and victimisation.

Yet, many employers over look this obligation and protection. Whether an employer has an equality policy, has provided managers and all staff with equality training, and how it has dealt with complaints of discrimination, harassment and victimisation are likely to be key factors when establishing this defence.

If you would like to discuss equality law or how to establish the statutory defence in more detail then please contact a member of the Employment team.