Equality and avoiding discrimination – what’s coming up under Labour

When speaking to employers, we often discuss potential discrimination and how to avoid this in the workplace. We constantly look for ways to support our clients to remove barriers and to make their businesses inclusive for everyone.

With the new Labour Government pledging to introduce a new Employment Rights Bill within its first 100 days in power, we thought it would be a good time to recap on the current legal obligations for employers and take the opportunity to look ahead at some of the key proposals from Labour around improving equality in the workplace.

Do I need a policy to protect my business?

To protect your business and reduce your vicarious liability it is important to have robust policies and procedures in place that underpin your commitment to equal opportunities and diversity for your workforce, this includes contractors, agency temps and casual workers.  However, it’s not enough to just have these policies gathering dust at the back of a cupboard or stored on a portal which no one can access.  Your entire workforce should be made aware of your policies as part of their induction, including their own legal obligations and the fact they can be named as a respondent in a Tribunal claim and found personally liable for any acts of discrimination and harassment in the workplace.  Evidence of a robust policy and records of workforce awareness and training will limit an employer’s liability. 

Avoiding discrimination during the recruitment process

In this newsletter we also wanted to highlight some of the key areas where employers can potentially discriminate against their employees, often unintentionally.  Unfortunately, ignorance will be no defence at tribunal should you be named as a respondent in a claim.  With claimants no longer having to pay fees to submit a tribunal claim (although under the Conservatives there has been a consultation earlier this year around the reintroduction of a nominal fee of around £55, it is likely that under Labour this may well not happen);  being able to represent themselves for free or access “no win no fee” legal representatives; there being no qualifying service required to make a claim and there being no cap on the compensation awarded to claimants at tribunal, it’s crucial that employers are aware of the risks.  Labour is also proposing to extend the time limit from 3 to 6 months for a claimant to submit their claim.

Disability Confident Scheme

Employers can sign up for the Disability Confident Scheme and once you’ve signed up, you’ll receive confirmation of your membership and a Disability Confident certificate in recognition, a badge that you can use on your stationery and social media etc for 3 years and information to guide you.  Please use the following link for further information Recruitment and disabled people: Encouraging applications – GOV.UK (www.gov.uk).  

Job advertisements

Remember, even a job applicant can make a claim against a business if they believe they have been discriminated against during the recruitment process.

When advertising new posts, it’s important to avoid discriminatory language such as “foreman required” or “would suit retired person.”  These may seem obvious, as they indicate you are looking for candidates of a particular gender or age, but less obvious language that still catches employers out is “office junior required.”  Substitute “junior” for “trainee” and you are not implying that the post is for a young person.

You can advertise for applicants with a certain protected characteristic such as sex or race, but only if it’s crucial for the job (a genuine occupational requirement) sometimes seen adverts for roles in the Care Sector, or if it helps a disadvantaged or under-represented group.   We recommend you take advice first if you are considering this. 

Sponsorship and recovering costs 

If an advertised role doesn’t satisfy sponsorship requirements (these can be verified on the Gov website UK visa sponsorship for employers: Job suitability – GOV.UK (www.gov.uk)) then you can state that the job isn’t eligible for sponsorship. 

However, if the role is eligible then you shouldn’t state that sponsorship isn’t available.  By doing so you open your company up to claims of indirect discrimination, which isn’t necessarily unlawful if you can objectively justify the reasoning.   Advertising jobs as unsuitable for works requiring sponsorship could also constitute direct race discrimination. 

You also shouldn’t refuse to hire a candidate who would require sponsorship for cost or time related reasons.    We have advised our clients, that one step they can take is to implement a visa repayment policy whereby they can claw back some of the sponsorship costs.   

Interviews

By law employers must ask a candidate if they require reasonable adjustments to be made to enable them to participate in the interview process.  This may include special access requirements such as a ramp or additional time to take a test.  It is advisable to ask candidates, when you are inviting them to an interview, to let you know beforehand, if they need you to make any adjustments for them. 

However, during the interview it is important to avoid asking any questions about sickness absence, health, or pregnancy.  

If a candidate does raise a health concern or disability with you during an interview, then it is advisable to let them know that if they are selected based on skills and experience that you will then have a further discussion at the point of making an offer, to find out how this impacts them at work and if there are any adjustments that you need to consider.   Offers can be made subject to satisfactory completion of a health questionnaire and an offer withdrawn if you are unable to facilitate reasonable adjustments. 

Access to Work 

Employees can apply for support through the Government’s Access to Work scheme.  They can apply for a grant to help pay for practical support with their work if they have a physical or mental health condition or disability.   The support includes a grant to help pay for not only practical support with their work, but support managing their mental health at work and money to pay for communication support at a job interview.   The grant will not pay for the employer to make reasonable adjustments in the workplace. 

References

If you are providing an employment reference, always make sure that the employee gives their consent, particularly for you to share any information about their health or attendance record. 

If you have made an offer of employment subject to satisfactory references and then receive a reference, which includes details of a poor attendance record – do not just withdraw the offer.  Speak to the candidate and discuss the reference with them, ensure you understand the facts behind the reference and if the absence was linked to an underlying health problem or disability, it is important that you explore reasonable adjustments wherever possible. 

Reasonable adjustments

All employers have a legal obligation to explore reasonable adjustments to support an employee who is pregnant or affected by an underlying health problem or disability.  Your duty of care also extends to your employee’s unborn child in the case of an expectant mother.  At this point you may need to refer your employee to an Occupational Health provider for expert medical advice. 

Managing absence for underlying health problems/disabilities

Managing absence is a challenge that all employers will face at some point, and we are supporting clients daily to manage staff who are struggling to cope with their mental health.  

It is discriminatory to take disciplinary action against an employee with an underlying health problem.  This does not mean that you do nothing, you are still entitled to manage the impact of their absence (or presence) on the business.   

The Labour Government have pledged to see more being done to support employee’s wellbeing with a focus on employees affected by Long Covid. 

We would urge employers who are concerned about doing the right thing to contact us.  Each case is different and will need managing very carefully to avoid a discrimination claim. 

Menopause

In the same way that the stigma associated with mental health is gradually being addressed, there has been a significant rise in the awareness of the menopause and its effects.  

Whilst menopause is not a protected characteristic under the Equality Act 2010, anyone wishing to bring a claim of menopause discrimination can argue that menopause is covered under the protected characteristics of sex, age or disability. 

Menopause can affect an employee’s sleep pattern and consequently their energy levels and concentration.  It is important to discuss concerns in a supportive manner and explore ways that your employee can be supported rather than treat any performance or attendance problems as a disciplinary matter. 

The Labour Government have pledged to introduce a requirement for larger employers to produce Menopause Action Plans, and as soon as guidelines are published, we’ll let you know more.

If you have any questions on any of the points raised above, such as: what constitutes a reasonable adjustment; how to recover sponsorship costs; risk assessments or details of an Occupational Health provider please do not hesitate to contact us for expert advice.