Reporting for HVP, Adam Bernstein breaks down the types of discrimination that can occur in a company of any size, and the potential repercussions.

Discrimination law isn’t the most exciting topic for employers to deal with. However, it’s one of the most expensive when mistakes are made and employees subsequently bring claims. Why? Because unlike other elements of employment law, discrimination awards have no limit.

The law in this area proportionately affects small firms more than it does larger businesses. Small firms tend not to have HR departments, while the larger business will often have a more appropriate structure and policies in place.

Small firms also tend to have a more informal cultural approach to work, but here familiarity can breed a greater risk of discrimination.

Worse still, employees or job applicants can use social media to highlight any mistakes the firm makes. Take the extreme situation of a Spanish woman who, in February 2018, received an employment rejection letter for a job (in a PR agency) that “needed a man who could handle the pace of working with big companies”. The aggrieved applicant put the rejection on Twitter, which then went viral, and this led to the company losing a number of high-rolling contracts and the firm having to take its website down.

So, as long as you have one member of staff, then discrimination law applies. SMEs are not exempt from the law or the risks; the Equality and Human Rights Commission has specific guidance for small businesses on the subject, just to prove the point.

Claims are expensive

Mark Stevens, a solicitor at VWV, says that defending a claim can be both time consuming and expensive, and “some lawyers are seeing cases where the employer is having to defend claims over incidents which are three or four years old”.

One case illustrates the risk well. In 2014, Group Captain Wendy Williams was passed over for promotion in favour of a male colleague who had served three-and-a-half years fewer than her. She took the Ministry of Defence to an employment tribunal, accusing the RAF of favouring men. Williams won and was awarded £560,000 to cover loss of earnings, loss of pension contribution, and injury to personal feelings.

More recently, in August 2017, London’s Evening Standard reported on the case of a former BAE Systems secretary who received £360,000 following a claim for discrimination, after a manager made a sexist remark.

She took sick leave from the security company after being “bullied and harassed, including sexually” by her supervisor while working on an RAF project. She was later dismissed from her £22,000 a year job, which led to the tribunal claim.

Types of discrimination

Discrimination law covers job applicants, agency workers, employees, and contractors. Even former employees are protected. Mark added: “Furthermore, you could be found to be responsible for your employees’ discriminatory conduct.”

Workers are protected against discrimination in relation to a number of protected characteristics – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

In many cases, the main issues tend to be around unfair opportunities, being denied work or roles, harassment, health issues, and disability (not supporting or making reasonable adjustments where someone has a health condition which could be protected).

There are different types of discrimination that employers should be aware of, said Mark: “The first, direct discrimination, occurs when a worker is treated less favourably than others because of a protected characteristic. An example would be where a firm has four members of staff, one of whom is disabled, and they all have to share one toilet with no facilities for the needs of disabled employee.”

The second type of discrimination is indirect. This can occur when an employer does something which has the effect of disadvantaging someone with a protected characteristic. It can occur unintentionally.

Mark explained: “Let’s say you introduce a bonus that is payable to only your employees who work full time and who have 100% attendance. This could be indirectly discriminatory towards your two female employees as, statistically, women are more likely than men to have childcare responsibility and work part time. The requirement that someone has 100% attendance could also disproportionally impact a worker with disabilities who may have a higher level of absence.”

Employers can justify indirect discrimination by showing that their actions were a proportionate means of achieving a legitimate aim, but you will need evidence of this. Saving costs is unlikely to be acceptable, and this may be harder for a small firm.

And then there’s harassment. It’s defined as unwanted conduct related to a “relevant protected characteristic which has the purpose or effect of either violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.

“What is interesting here is that the perpetrator’s intention is irrelevant and the victim’s perception of the way that they have been treated is important. One-off incidents can amount to harassment,” said Mark.

Discrimination claims are difficult and time consuming to defend. It’s far better to work within the bounds of the law and diffuse any issues before they arise.