Discrimination June 2010
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Transcript of Discrimination June 2010
Avoiding claims of discrimination
by Fluid
June 2010
Page 2
Contents3-4 Introduction to Fluid5-6 Legal considerations7-8 Discrimination Law Review-
green paper9-10 Acknowledgement of bias11-12 Exercise A13-14 Ageism15-25 Disability26-27 Dyslexia28-29 Gender30-31 Race32-33 Religion34-35 Sexual orientation36-37 Smoking38-39 National Dismissal Register40-41 As a victim of discrimination42-43 Yes or no quiz44-48 Equality Act49-50 Case studies51-52 Exercise B53-54 Conclusion and questions
Page 3
Introduction
Page 4
Introduction to Fluid• Fluid Consulting Limited (Fluid) is a specialist
human resources consultancy headed by Tim Holden MCIPD
• 10 years in banking• 10 years in Human Resources consultancy• Fluid trading since 2006• The core services provided by Fluid are:
- Retention- Selection- Attraction- Remuneration & Reward - Outplacement- Training & HR consultancy
Page 5
Legal considerations
Page 6
Legal considerations
• Legislation• Types of discrimination• Direct discrimination• Harassment and segregation• Indirect discrimination• Victimisation• Genuine Occupational Requirement• Cost of discrimination
Page 7
Discrimination Law Review-green paper
Page 8
Discrimination Law Review-green paper
• Introduce an equal pay moratorium where employers carry out pay audits and have a set period free from legal challenge within which to identify any inequalities identified
• Develop an ‘equality check tool’ for employers to use, as recommended by the Women and Work Commission
• Consider introducing a voluntary equality standard scheme, which could be an independently assessed, accredited standard
• Important role for the Commission for Equality and Human Rights to develop positive action guidance
• Extending positive duties in the public sector to cover all grounds of discrimination
Page 9
Acknowledgement of bias
Page 10
Acknowledgement of bias
• Need to accept we are biased; without this recognition there can be no progress
• Need to understand what biases we really have.
• Need to be able to discuss these biases with each other-need to ensure we challenge each other and remain vigilant and alert, not only to our biases but to those of others around us
Page 11
Exercise A
Page 12
Exercise A
Page 13
Ageism
Page 14
Ageism
• Treating people differently on the grounds of age will be direct discrimination unless it can be justified objectively
• To prove ‘objective justification’ employers have to show their discriminatory actions were a ‘proportionate means of achieving a legitimate aim’
• Employers concerned about discrimination should identify what they want to achieve, come up with proposals, consult with stakeholders, consider alternatives and take reasonable action
• Employers can safely retire employees at 65, if they follow the retirement procedures
Page 15
Disability
Page 16
Disability 1 of 10
• Employers need to be aware of the need to make reasonable adjustments in cases where a provision, criterion or practice places a disabled person at a substantial disadvantage
• An employer has to take reasonable steps to prevent that disadvantage, and there is no defence of justification for failure to comply
• The DDA provides non-exhaustive lists of steps to be considered but there are still many grey areas for employers
Page 17
Disability 2 of 10
• Employees injured at work may sue for damages in a personal injury claim. If they are disabled, there may also be a discrimination claim under the DDA, if they can prove that the employer has failed to comply with the act’s premises regulations
• Employers’ insurance policies generally only cover bodily injuries to employees rather than ancillary discrimination claims that may also arise
• Case law suggests that secondary injury to feelings claims are likely to cost more than £1000
Page 18
Disability 3 of 10
• HOW FAR SHOULD THE DDA GO?• Certain conditions are deemed ‘disabilities’ for the DDA,
including blindness, severe disfigurements, cancer and HIV• In other cases, an individual’s condition must meet the
statutory definition of disability to be protected under the DDA-but this can often lead to uncertainty particularly in the case of mental impairment
• Certain conditions are excluded from the DDA such as substance addiction-however providing an impairment falls within the definition of disability its cause is irrelevant
• Employers should audit all policies and procedures for disability bias and regularly review the effectiveness of procedures for identifying potential disabilities and reasonable adjustments
Page 19
Disability 4 of 10
• Disability-related discrimination occurs when someone is treated less favourably “ for a reason that related to that person’s disability” than others “to whom that reason does not or would not apply”
• Establishing disability-related discrimination means asking: Has the disabled person received less favourable treatment for a reason relating to the disability? If so, can the less favourable treatment be justified as being “material to the circumstances of the particular case and substantial”?
Page 20
Disability 5 of 10
• CHANGES MADE BY EMPLOYERS TO RECRUITMENT PRACTICES
• Offered a guaranteed interview to any person with a disability who meets essential criteria for the job
• Included text in recruitment materials to show employer welcomes applicants with disabilities
• Changed wording and/or images in job ads to give positive impression about commitment to employing people with disabilities
• Modified the content of person specifications and/or job descriptions
Page 21
Disability 6 of 10
• CHANGES MADE BY EMPLOYERS TO RECRUITMENT PRACTICES
• Modified the organisation’s website to ensure it is accessible to people with disabilities
• Made alterations to improve interview access for applicants with disabilities
• Offered to provide an application form in alternative formats
• Changed application form to make it easier for people with disabilities to complete
• Advertised vacancies in the disability press to attract applicants
• Sent organisation’s diversity/disability policy to applicants
Page 22
Disability 7 of 10
• MAKING ADJUSTMENTS• Accommodating the needs of disabled workers
extends way beyond installing a ramp or adapting toilet facilities. Forward-thinking employers go out of their way to make the jobs of disabled employers easier and fit in more flexibly to the business, with changes that include:
• Employing signers to enable deaf people to attend important meetings
• Identifying products by colour codes rather than numbers
• Flashing lights for deaf employees and vibrating alerts for blind workers
Page 23
Disability 8 of 10
• Alterations to heavy doors for multiple sclerosis sufferers
• Assisting with costs for wheelchairs, hearing aids etc.
• Allowing dyslexic employees to dictate reports rather than to write them down
• Disabled car parking adjacent to the office• Providing an appropriate environment for hearing
dogs/guide dogs• Painting doorways in bright colours for the
visually impaired
Page 24
Disability 9 of 10
• REASONABLE ADJUSTMENTS• Conducting a proper assessment of what
reasonable adjustments may be required• Altering hours or the place of work• Reallocating duties to another employee• Modifying disciplinary or grievance procedures or
redundancy selection criteria
Page 25
Disability 10 of 10
• FACTORS TAKEN INTO ACCOUNT WHEN DECIDING WHETHER A STEP IS REASONABLE
• Likelihood of the adjustment removing or reducing the disadvantage to the disabled person
• The nature of the employer’s activities and the size of its undertaking
• The costs the employer will incur and the resources/assistance available
• The disruption to the employer’s organisation
Page 26
Dyslexia
Page 27
Dyslexia
• Know the signs• Seek confirmation• Provide support• Use technology• Look at your practices• Consider individual needs• Seek specialist help• Increase awareness
Page 28
Gender
Page 29
Gender
• Equal pay• Glass ceiling• Legal situation• Recent developments
Page 30
Race
Page 31
Race
• Arrangements for deciding who should be offered employment
• Terms on which employment is offered• Situations in which an employer refuses or
deliberately does not offer someone a job• Way in which access to opportunities for
promotion, transfer or training, or any other benefit, facilities or services is provided
• Dismissal or where someone has been subjected to any other disadvantage
Page 32
Religion
Page 33
Religion
• A dress code requiring employees to act against their religious beliefs risks being indirectly discriminatory, although it may be possible for an employer to objectively justify such a code
• Most religious observances can be accommodates in the workplace and employers should be reasonable in their approach to dress
• An employee who loses a claim for direct or indirect discrimination, but can show that they were treated less favourably than other people after making the allegations, might still bring a successful claim of victimisation
Page 34
Sexual orientation
Page 35
Sexual orientation
• The Employment Equality (Sexual Orientation) Regulations 2003 provide protection from discrimination for all employees, whatever their sexual orientation
• Good employers have developed anti-harassment policies and training programmes that incorporate sexual orientation, and many are starting to include orientation in workforce monitoring programmes
Page 36
Smoking
Page 37
Smoking
• A dismissal of an employee breaking the smoking ban is likely to be fair if the employer’s no-smoking policy:
• Specifies that smoking in an unauthorised place is breaking the law, and will result in disciplinary action and possibly dismissal
• Has been communicated to all employees and has been applied consistently
• Treating employees differently for breaking the smoking ban could result in claims for breach of mutual trust and confidence and constructive dismissal
Page 38
National Dismissal Register
Page 39
National Dismissal Register
• The use of the National Dismissal Register presents big risks for organisations in respect of:
• Discrimination claims• Data protection compliance• Defamation actions• Unfair dismissal claims• Damage to reputation if any of the above claims
are made
Page 40
As a victim of discrimination
Page 41
As a victim of discrimination
• Don’t let the situation fester• Keep a diary of incidents which record how
you felt as well as the bare facts• Stay cool and rational in any discussions• Follow the proper procedures if the
discrimination is unlawful• Remember that you are entitled to the
same support mechanisms as anyone else
Page 42
Yes or no quiz
Page 43
Yes or no quiz
• 1. Calling a colleague “the postroom boy” or the “girl from reception”
• 2. Fixing a maximum age limit for a job when recruiting
• 3. An unfair dismissal claim by a 68 year-old• 4. Giving a 40th birthday card that says “now
you’re over the hill”• 5. Awarding sabbaticals after 10 years’ service• 6. Employing young workers in a high street
fashion store to attract young shoppers
Page 44
Equality Act
Page 45
Equality Act 1 of 4• WITH EFFECT FROM OCTOBER 2010• The basic framework of protection against direct
and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport.
• Changing the definition of gender reassignment, by removing the requirement for medical supervision.
• Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers.
Page 46
Equality Act 2 of 4• WITH EFFECT FROM OCTOBER 2010• Clearer protection for breastfeeding mothers;
Applying the European definition of indirect discrimination to all protected characteristics.
• Extending protection from indirect discrimination to disability.
• Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment.
• Applying the detriment model to victimisation protection (aligning with the approach in employment law).
Page 47
Equality Act 3 of 4• WITH EFFECT FROM OCTOBER 2010• Harmonising the thresholds for the duty to make
reasonable adjustments for disabled people. Extending protection from 3rd party harassment to all protected characteristics. Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.
• Allowing claims for direct gender pay discrimination where there is no actual comparator. Making pay secrecy clauses unenforceable.
Page 48
Equality Act 4 of 4• WITH EFFECT FROM OCTOBER 2010• Extending protection in private clubs to sex,
religion or belief, pregnancy and maternity, and gender reassignment. Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce. Harmonising provisions allowing voluntary positive action.
Page 49
Case studies
Page 50
Case studies
Page 51
Exercise B
Page 52
Exercise B
Page 53
Conclusion & Questions
Page 54
Conclusion
• Summary• Questions