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Common sense is not enough

Most employers know that they are operating in a high stakes arena when making judgements on equality issues in the workplace. However, many suffer from a lack of confidence in their own decision making about how to manage the risks.

Employers cannot rely on “common sense” to avoid liability. The law regulates what is “fair” “reasonable” and “appropriate” at work.  We all have personal views about what this means. Our personal standards will not always be consistent with the legal view.  Managers may find it hard to accept and apply a law which gives certain categories of employee more rights than others in particular situations.  This can lead to a fearful risk averse approach or a culture of pessimism where managers feel powerless in the face of idealistic and ever changing legal standards.

Treating everyone the same may seem like a sensible place to start if you are trying to avoid claims that you have discriminated. However, the law does not require equal treatment for all employees and applicants. Instead, it identifies particular characteristics of individuals and groups and offers protection where disadvantage results. This can lead to resentment from people who feel that the law doesn’t apply to them. A classic misconception is non-religious people believing that their ‘non-belief’ is unprotected.  This is not the case.  The law expressly protects those who are treated badly as a result of not holding a religious or philosophical belief.

That said, there are gaps in the protection offered under the law. Generic (non-discriminatory) harassment is not covered. Victims (usually singled out because they have a ‘characteristic’ albeit a non-protected one, commonly, physical appearance; socio-economic group; personality traits) may raise a grievance of bullying or harassment. However, they have to go to the civil law (more complex and expensive claims) or resign and claim constructive dismissal in order to hold their employer to account.

The recent overhaul of the legislation has not filled this gap but it has broadened the concept of discriminatory harassment in the workplace. The pool of potential claimants is wider.  In this sense, employers face an increased risk of harassment claims. Now, an employee need not have the protected characteristic themselves in order to claim harassment. The offending conduct need only be related to a relevant protected characteristic (i.e. sex, race, age, sexual orientation, religion or belief, gender reassignment, disability). This includes conduct that is not directed at the particular employee (directed at someone else or no one in particular) and conduct which does not take place because of the protected characteristic. Employers fear that any broadening of this law leads to “the death of the office joke” and “a ban on banter”.  Whilst any increased risk needs to be acknowledged, understood and mitigated, important elements of the harassment definition are often forgotten. The behaviour complained of must be unwanted before it can be the basis of a successful claim. Even then, the employer has the opportunity to avoid liability by demonstrating that reasonable steps were taken to prevent it.

Some behaviour (at the more extreme end of the spectrum) will be assumed to be unwanted. However, the law does offer some protection where colleagues mutually engage in behaviour and then one party subsequently complains. Two recent cases illustrate this point well. Both cases involved claimants who had tolerated conduct over a period of time, and there was evidence that the behaviour was ‘mutual’ and sometimes ‘initiated by’ those who now sought to complain. In the absence of evidence to the contrary employers may have to accept what the employee tells them about the effect of the behaviour. In such cases, employers are often afraid to admit that harassment has taken place. Admissions and apologies can have real value to the victim. They can also have legal importance. Employers are not expected to prevent any act of harassment taking place within the workplace.  Their obligation is limited to ensuring that all reasonable steps are taken to prevent the unlawful harassment occurring. This includes general steps such as creating and promoting a policy amongst the workforce, training managers, dealing promptly and appropriately with complaints and taking disciplinary action for breach. Evidence of such steps will put an employer in a good position to successfully defend a claim. Implementing policies or establishing best practice rules is an important way of ensuring consistency and regulating decision making across the business.  It means treating everyone the same.  This gives rise to risk where the policy turns out (despite the intent) to disadvantage a particular group.  

Employers are entitled to bring in blanket rules and policies (even where these have a discriminatory impact). The employer’s handling of objections is crucial to whether or not they will be able to justify the policy. Most employers can identify a legitimate business reason for the policy but often they are unable to demonstrate “proportionality”. This is a high hurdle to clear.  It requires a very individual approach to be taken by the employer. For example, a “no working from home” policy is likely to have a disproportionate impact on female employees. This does not mean that the policy cannot be enforced. Rather, it means that an employer must be able to justify the existence and application of the policy in response to particular complaints/requests.  With advancements in technology, there are an increasing number of roles that employees can properly perform from remote locations. This can still cause difficulties with regard to quality monitoring, data security, increased cost of equipment and insurance, managing workflow and supervision. Often, such objections are legitimate and will be accepted by a tribunal. However, an employer must take an individual approach to whether or not the particular employee can be accommodated.  If not, it is imperative that the employer can evidence the reason why and demonstrate the balance (between the discriminatory impact on the individual and the needs of the business) has been properly addressed. It is a common myth that once an exception has been made for one employee, a precedent is set. Whilst it may seem unfair to accommodate one employee and not another, the law allows for this where the circumstances are different
are different.

The duty to make reasonable adjustments for disabled employees and applicants is a clear example of employers being expected to “do more” for certain groups of protected individuals.  It is essential that managers are well trained and alert to the duty being triggered in the context of recruitment, performance and attendance management. There are common misconceptions about the extent to which the obligation extends. One employer’s view of what constitutes a “reasonable adjustment” will be very different from another. The attitude of other employees (particularly resentment that a disabled employee may be given easier tasks, preferential shifts etc) is not a relevant consideration. However, proportionality and effectiveness of the adjustments are relevant. A recent case highlights the role that cost plays in the analysis. Declining an adjustment purely on the basis that it would be too costly is risky territory for employers (particularly employers who are profitable businesses or have significant budget for such spending). However, the proportionality of the investment in particular adjustments can be an important factor in “reasonableness”.    

Employers wanting to be sure that they have properly discharged the duty to make reasonable adjustments should generate as many ideas about potential adjustments as they can (using a variety of sources including suggestions by the employee, medical advisors, charities, and Access to Work).  A detailed analysis of which (if any) of those suggested adjustments would be reasonable then needs to take place. Any objections must match the criteria set out in the legislation. Trial periods generate evidence about the effectiveness and practicality of suggested adjustments. They serve a dual purpose. All parties have to confront any assumptions about the “workability” of a suggested adjustment, whilst a bank of evidence will also be generated if the adjustment is not workable. Whilst a trial period will not always work (it would be unsuitable where significant capital investment is required to set up the adjustment) it can demonstrate an employer’s open mind, even if the trial period itself is ultimately unsuccessful. Ultimately, there is no magic silver bullet.

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