An employer will not however be liable under the Equality Act 2010 in circumstances where the employee commits a criminal offence.
Discriminatory behaviour is not always overt, obvious or easy to detect. It is therefore important that employers take complaints about discriminatory behaviour seriously and carry out a reasonable and objective investigation if an employee makes a complaint.
Discriminatory behaviour by an employee at, for example, the office Christmas party or post work drinks may be considered to have occurred during an “extension of employment” resulting in the employer being potentially liable for the employee’s actions. As a result, some employers find it prudent to circulate advice to employees in advance of company events regarding, for example, appropriate behaviour and moderate drinking as there can often be a link between discriminatory behaviour and excessive drinking.
The “reasonable steps” defence
If the employer can show that it took all reasonable steps to prevent the perpetrating employee from doing a particular discriminatory act, the employer may be able to avoid liability for the employees’ actions. This is called the “reasonable steps” defence.
So what does taking “all reasonable steps” mean in practice
What amounts to reasonable steps will depend on the circumstances involved but appropriate actions include:
- Implementing an equal opportunities policy and reviewing this on a regular basis;
- Informing employees of the equal opportunities policy and the consequences of non-compliance such as disciplinary action up to and including dismissal;providing regular training to managers and staff in relation to equal opportunities, anti-bullying and the reporting of discriminatory behaviour in the workplace; and
- Dealing effectively, objectively and promptly with complaints of discrimination in the workplace.
An employee is less likely to pursue legal action against an employer if he feels his grievance regarding discriminatory behaviour has been dealt with in a genuinely supportive, fair and objective manner.
The importance of a well drafted equal opportunities policy should not be underestimated. Some employers take an additional step, namely requesting that new employees sign a confirmation document acknowledging that they have read and agree to comply with the policy. This prevents an employee from subsequently claiming that he did not know of the policy’s existence and acts as a useful reminder of the serious consequences of non-compliance. It also helps to augment an employer’s argument that it took “all reasonable steps” to prevent discriminatory behaviour in the workplace.
Immigration document checks
As employers should be aware, it is unlawful to discriminate during the recruitment process as well as during employment. Employers are required to conduct checks in relation to job applicants to ensure that such individuals are legally entitled to work in the UK.
While employers are required to carry out the pre-employment checks, they must be careful to avoid discriminating against individuals during this process. For example, only carrying out document checks on individuals with a foreign sounding name or accent is likely to constitute directly discriminatory conduct. Employers should therefore operate a consistent procedure in relation to document checks for employees and job applicants.
Avoiding discriminatory policies
Employers should consider whether their policies, rules and procedures indirectly discriminate against individuals with a protected characteristic and, if so, whether reasonable changes can be made in light of the disadvantage suffered. A policy may apply equally to all employees but put employees with a particular protected characteristic at a particular disadvantage. This is known as indirect discrimination.
For example, a business which is open seven days a week may require all its employees to work at weekends. This may put certain employees who observe a day of rest over the weekend at a particular disadvantage. Similarly, a policy requiring all staff to work full-time may put female employees at a particular disadvantage as they may be more likely to have primary child-care responsibilities.
Indirect discrimination will not be unlawful if it can be justified. An employer must show that there is a legitimate aim (a real business need) and that the particular practice, policy or procedure is proportionate to that aim (i.e. it is necessary to achieve that aim, and there is no alternative less discriminatory means available).
Employers should therefore audit their policies and procedures regularly to ensure that they do not disadvantage particular groups of employees or, to the extent that any disadvantage is caused, this can be objectively justified. Records should be retained of this audit process so they can be referred to in the future if necessary, for example when defending a claim in the Employment Tribunal.