5 Preventing discrimination

The cost of claims being brought by employees against their employers is rising. In the United Kingdom there were more than 100,000 applications to employment tribunals in 2001, the number of cases having risen by 135% over the past 10 years.

This statistic should prevent any employer from thinking that it couldn’t happen to them. For the small to medium-sized business, who may not be insured against such eventualities, litigation has been known to jeopardise their future viability and, in some cases, has resulted in the business closing entirely.

This chapter offers advice to managers and employers on how to avoid this nightmare by preventing discriminatory practices from entering the workplace.

Step one: Educate your employees

All employees must be aware of discriminatory issues, and if you are a manager, it’s your responsibility to make sure that all relevant information is available, that best practice is encouraged, and that diversity is valued. The senior managers should set the tone for this environment and their actions should exemplify the culture you want.

Publish your policy on discrimination prominently in the workplace and on your company intranet, if you have one.

Establish processes that will encourage the fair treatment of everyone in the organisation, and review your progress regularly.

Use every opportunity to publicise your policy, and include a clear statement of it in all company literature.

Be seen to implement the policy so that your employees have faith in its authority and effectiveness.

Step two: Implement the right procedures

A discrimination-free working environment should have the following policies and procedures in place:

Policies and decision-making processes that are transparent so that there are no misunderstandings when decisions made apparently discriminate against someone on the basis of their gender, sexual preference, race, age, or physical impairment.

Performance reviews that are undertaken regularly, where goals set previously are appraised objectively. An employee should always know what expectations their line manager has of them, and what level of success they have achieved in fulfilling these expectations. There should be no shocks or surprises when it comes to the performance review.

Training in proper recruitment and selection techniques for those engaged in these processes as well as training in Equal Opportunities issues is advisable. This is particularly important for line managers—and if you state in your policy that you will train all of them then you must see it through.

If you’re looking at discrimination management afresh it will be clear that you’re not starting with a blank sheet. There will be ‘traditional’ systems and ways of doing things in the organisation that have grown up over the years. There might also be—in larger organisations—an informal culture that regulates relationships between people. This may be deeply entrenched, and may also run counter to the evolving trends in legislation to prevent discrimination.

There have been many examples in recent years of corporate cultures that are (unwittingly) hostile to certain groups of potential employees. Organisations are increasingly being labelled as ‘institutionally discriminatory’.

Pay particular attention to understanding the full effects of the informal culture in your workplace, and to ensuring that it does not create problems. This is a difficult area: it isn’t easy to change established behaviours. You can expect to come up against some resistance, which will need sensitive handling.

Nor is this a problem that can simply be sorted in one go. Organisation cultures and the social environment are dynamic, changing systems, where people come and go, and move across or up the organisation, building relationships on their way. This means regular monitoring of behaviour will be needed.

Step three: Know the rules

It is important to know that, as an employer, you’re responsible for the actions of your employees. Keeping your employment practices within the law will protect you from expensive litigation procedures and possible payouts.

1 The Equal Opportunities Code of Practice

The EOCP makes three main recommendations:

Each individual should be assessed according to his or her personal capability to carry out a given job. It should not be assumed that men only or women only will be able to perform certain kinds of work.

Any entry qualifications or requirements which discourage applications from a gender group or deter married people must be justifiable in terms of the job to be done.

Age limits should only be set if they are necessary for the job. Imposing an unjustifiable age limit could constitute unlawful indirect discrimination.

As a result of the EOCP, you will need to perform the following actions:

Ensure that dismissal or redundancy policies are carefully and clearly drawn up, well publicised, and implemented.

Maintain even-handed disciplinary procedures that don’t tolerate unequal levels of performance between the gender groups.

Offer voluntary redundancy to male and female employees on equal terms.

If employment conditions should change as a result of a downturn in the market, make sure that working arrangements don’t discriminate on the grounds of gender.

Make provision for those who are physically or mentally impaired. This includes ensuring that non-hazardous access to the working and service areas is possible, and that any special furniture or equipment is available.

If an employer treats an able-bodied employee differently from a physically challenged employee, or does not make reasonable adjustments to enable a physically challenged person to work effectively, they are answerable to the law. ‘Reasonable adjustments’ would mean ensuring that features of the work environment did not put the disabled person at a disadvantage. This might entail being flexible about working hours and providing equipment, training, or assistance to remove the barriers that may otherwise prevent the person from being an effective employee. Remember that the test of reasonableness relates to the employer’s ability to make adjustments, and so small businesses may be judged to have acted reasonably in some circumstances where much larger companies would have been expected to go further.

2 The Sex Discrimination Act

This Act makes it unlawful for any British employer to treat men and women differently when they are in comparable circumstances. It is also unlawful to engage in any form of harassment that may cause injury to the body or to the feelings of the employee. Sexual harassment is usually taken to mean unwelcome physical, verbal, or non-verbal conduct of a sexual nature. This includes comments that the recipient finds demeaning or offensive (including comments about their appearance), intrusive questions about their sex life, requests or demands for sexual favours, or any other behaviour that is intimidating, hostile, or humiliating.

Don’t assume that the absence of an objection means the behaviour is condoned or even acceptable. People sometimes try to put up with a situation for a while before taking action.

3 The Equal Pay Act

According to this Act, levels of pay and benefits must be set on the basis of the demands of the role and the value of the role to the business. These should be applied without prejudice to men or women. This means equal pay for equal jobs, and equal pay for jobs of equal value.

It also requires that regular salary and benefit reviews take place to ensure that the rationale for salary levels does not slip.

Bear in mind that the Equal Opportunities Commission intended that 50% of large employers (those with more than 500 workers) would have carried out a pay review by the end of 2003, and that 25% of the remaining employers (those with fewer than 500 workers) will have done so by the end of 2005.

Step four: Introduce new policies appropriately

Initially, you need to focus the application of your discrimination policy on a few key HR procedures. This will help integrate your new approach to discrimination with the existing corporate environment.

Here are some of the places to start:

Recruitment—recruit only on the basis of the skills and abilities needed to do the job.

Selection—select on merit by focusing on objective information about skills, abilities, or potential. Seek evidence of positive attitudes to diversity in the workplace. If possible, publish your selection criteria and stay within them.

Promotion—base promotion on the ability, or demonstrated potential, to do the job, and on appropriate behaviour defined by discrimination management policy.

Training and development—encourage all employees, including part-time workers, to take advantage of relevant training opportunities, and show how the organisation offers development opportunities to all.

Redundancy—base decisions on objective, communicated, job-related criteria to ensure the skills needed in the business are retained.

Retirement—ensure that retirement schemes are fairly applied, taking individual and business needs into account.

Step five: Communicate

Keeping the channels of communication open between you and your employees is the single most effective way of avoiding discriminatory behaviour in the workplace. When people know what the rules are, and see that you’re serious about implementing them, they will be less likely to risk contravening the employment acts.

As an ethical employer you should let your customers know your policies on creating a non-prejudicial environment for your employees. Increasingly, stakeholders are making ethical choices about whom they will or will not do business with.

Step six: Enjoy the benefits

Recent studies in Europe, the United States, and Australia have shown that attention to discrimination can produce tangible bottom-line benefits. Consultation between managers and employees about discrimination was found to demonstrate care and respect. By encouraging discussion of these issues, and showing willingness to incorporate good suggestions, you can build considerable loyalty among your employees.

Staff in the companies studied reported that:

the atmosphere of the company became more positive and respectful

taboos that prevented discussion of sensitive subjects were removed

teamwork improved significantly

employees discovered ways in which they could personally contribute to alleviating discrimination

On the other hand, organisations that paid little or no attention to discrimination were found to have:

high absenteeism and turnover among those who felt they were victims of discrimination or harassment

higher error and scrap rates

increased accident rates, and higher claims for compensation

low morale and loss of reputation with customers

lower productivity and quality

more errors in making appointments to key positions

Common mistakes

You don’t provide clear company policies

Organisations sometimes forget to declare their attitude towards equal opportunities until a case is brought against them. Ignorance is no protection from the law, and you must make sure that everyone is aware of your policies.

You are complacent

The most common mistake is being complacent or unprepared—believing that ‘it can’t happen to us’. When it does happen, however, the damage to finances, profitability, and reputation can be very severe. A secondary finding in one of the international studies mentioned above was that, in some sectors, almost 50% of employees thought that they had been the victim of harassment, bullying, or discrimination. Their employers were clearly not aware of this. That is a huge number of potential lawsuits to be defended, and fees and claims to be paid out.

You don’t change company culture

Professions that have been dominated by men are now required to think about how to integrate women into their traditionally male workforces. Many high profile cases have been brought against employers because they haven’t prepared for the entry of women. It’s no use thinking that new entrants must conform to cultures that have existed for years. It’s the responsibility of organisations to make sure that suitable practices are adopted to prevent any kind of discrimination.

You think that only large organisations have to comply

Employment law doesn’t take account of differences in the size of an organisation, its circumstances, or the market conditions. It is a common mistake for smaller businesses to ignore good employment practice with the excuse that they don’t have the resources to support it. There are many online publications that make following the Codes of Practice straightforward.

STEPS TO SUCCESS

Don’t think it could never happen in your organisation.

Have appropriate policies and procedures in place.

Publicise your policies (internally and externally) and educate your employees. Always be clear.

Enforce your policies, even in informal but work-related environments.

Keep up to date with the law.