Avoiding Discrimination in the Workplace: Answers to Employers' Key Questions

What is employee discrimination?

The Equality Act 2010 protected characteristics law stipulates that it is unlawful to discriminate against anyone in the UK for any of the following reasons:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion and belief
• Sex
• Sexual orientation.

1. Direct discrimination. This is the type of discrimination people are most familiar with, as it tends to be the most obvious. It is treating someone less favourably because of a protected characteristic. For example, it would include dismissing someone from their job because they are pregnant or not offering someone an interview because of their race.
2. Direct discrimination by perception is when someone is treated less favourably because it is thought they have a protected characteristic. For example, not offering someone a promotion because you think they are gay.
3. Direct discrimination by association is treating someone less favourably because they are associated with someone with a protected characteristic. For example, withdrawing an offer of employment upon discovering the candidate has a disabled child out of fear they may need a lot of time off.
4. Indirect Discrimination. Indirect discrimination in the workplace often catches employers unaware because, while direct discrimination is very deliberate, indirect discrimination may not have such a sinister motive.
   It is where a workplace practice or policy is implemented that has a negative or less favourable impact on workers with a protected characteristic, even though the practice or policy applies equally to all employees.
   For example, you may have a sickness policy stating that the disciplinary procedure is triggered on three episodes of sickness. An employee who has a disability and whose absences are linked to that disability will be disproportionately affected by this, which may constitute indirect disability
5. Harassment: Harassment within the workplace is unwanted behaviour related to a protected characteristic that has the purpose or effect of violating someone’s dignity or that creates a hostile, degrading, humiliating, or offensive environment.
6. Victimisation: Victimisation in the workplace is when someone is treated less favourably because they have complained about workplace discrimination or harassment or have supported someone else who has made a complaint. For example, an employee who has acted as a witness to support a colleague who has taken tribunal action against their employer, alleging a form of employee discrimination, is then unjustly passed over for promotion.

Your Questions Answered:

Time off to care for dependents is a statutory right. It is usually unpaid, but staff should not be disadvantaged by being required to take time off for this reason.

It is fine to ask someone who requires time off at short notice why they need it. Still, employers will need to be as accommodating as possible because not only do employees in these circumstances have an entitlement to time off for dependents, but if they were mistreated or subjected to detriment at work due to time off to care for a disabled child, they may be entitled to bring a workplace discrimination claim against their employer for discrimination by association.

The law now also provides the day-one right to carer’s leave for all employees, which gives employees the right to take time off to carry out their responsibilities as carers. See our article on carer’s leave here.

Employers shouldn’t inquire about a candidate’s medical history prior to making a job offer, nor should candidates be quizzed about their domestic arrangements, childcare, and so on.

However, if a candidate volunteers this information at the recruitment screening stage, note it in case adjustments are required after a job offer is made. Employers should not use that information to select a candidate for the role (except in the rare circumstances under question 5).

If an employee were turned down for a role due to them declaring at the interview that they have a disability or have recently had a child, this would amount to an act of employment discrimination, the tribunal awards for which could prove very costly.

Always recruit on merit to avoid the risk of workplace discrimination claims!

It depends on the type of job offer. There are conditional job offers, which are conditional upon specific criteria being met, such as satisfactory references or pre-employment checks. Usually, these job offers carry a TBC start date.

If a job offer is conditional upon receiving good references and a poor one is received, it may be permissible to withdraw the offer.

Where a job offer is unconditional , or the person has commenced employment, withdrawing a job offer could lead to the risk of a workplace discrimination claim. These claims may be brought through the civil courts for damages arising from the withdrawal of the job offer.

However, a job offer should never be withdrawn due to a discriminatory reason. For example, if an employment reference discloses a high absence that may have been linked to disability or pregnancy, withdrawing that offer could result in a workplace discrimination claim before an employment tribunal.

Before withdrawing a job offer, advice should always be sought from Avensure. For more information, please see our previous article on withdrawing job offers here.

From the wording of job advertisements to where they are placed, care needs to be taken to avoid allegations of discrimination. Consider the following:

• Age-biassed language includes descriptions such as ‘energetic’, ‘lively’,’ recent graduate’, and so on. These words can imply that you are seeking a younger applicant.
• Experience: if the role requires specific years of experience, then state this in the advertisement, but if it’s not essential, you may be inadvertently discouraging younger applicants.
• Jargon: avoid jargon and buzzwords like ‘industry guru’; the job advertisement is there to give information about the role, not to confuse people. You will waste precious and costly advertising space and end up sifting through applications from unsuitable candidates.

In this case, if it’s a graduate entry-level position where a degree is a requirement of the role, it is fine to advertise for graduates.

1. Always recruit on merit; have a job description and person specification to hand to ensure your focus remains on recruiting the best person for the job and you avoid discriminatory behaviour in the workplace.
2. Ensure those responsible for recruitment know what they are doing; workplace discrimination claims can occur without someone working for you. Make sure those involved in recruitment are trained in equality and diversity.
3. Keep records of applications and interviews; this will be your best defence if you face a legal challenge.
4. Be consistent in your approach to finding the best candidate(s). While you should ask questions specific to each candidate’s experience, make sure that your core interview questions are used for all candidates to ensure a fair assessment.
5. What is positive discrimination in the workplace, and is it illegal?
   Positive discrimination in the workplace is treating someone more favourably because they possess a particular protected characteristic; it is generally unlawful. An example of this would be to favour male job applicants over females.
   Often, positive discrimination is confused with positive action. Positive action is lawful and is used when an organisation can take positive action to increase diversity, where it has identified that there are underrepresented groups within the organisation.
   For example, in addition to the websites and publications you usually use to post job advertisements, you may also choose to place a job advertisement in a publication or on a website geared towards a particular religion in the hopes that this may increase applications from this group.
6. Is it ever lawful to openly exclude applications from certain groups?
   Yes, but caution should be exercised to prevent discriminatory behaviour in the workplace. Rather than look at it as ‘excluding’ certain groups, there are times when an employer can justify only recruiting a job applicant who possesses a particular protected characteristic. These are referred to as genuine occupational requirements.
   For example, it would be lawful to advertise for and recruit a female support worker in a home for women who have been subjected to domestic abuse perpetrated by males without being incriminated for discrimination during recruitment.