Tackling the discrimination trap

Discrimination in the workplace can be a regulatory minefield, requiring a skilled HR team to navigate the company and keep it on the right side of the law. Breakthrough Business Editor Guy Matthews explains current thinking

There are many ways in which employees can be discriminated against, leaving an employer potentially open to action in the civil courts. The Equality Act 2010 defines a number of areas where an individual might suffer bias. These include age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Discrimination can be direct, whereby a person is treated differently and worse, or at any rate less favourably, than someone else on the basis of one of the aforementioned reasons. But just as illegal is indirect discrimination where the employer operates a practice, policy or rule that applies to everyone in the same way, but has a worse effect on some people than others.

Identifying where an organisation can take a wrong turn within this minefield is a tricky occupation. In a large company with a substantial human resources department, this may literally be a full-time job. But all companies must comply, regardless of how well-resourced their HR they be. What then are the most obvious areas where a mid-sized or small company can go wrong?

"As of June 30 2014, the law on flexible working is changing. The changes have come about because the government wants to increase the flexibility of people’s working hours, and make them more family friendly. The new rules have an important if indirect bearing on discrimination..."

Common areas of concern

Heather Platt, a barrister with legal firm Riverview Law, says that gender and disability discrimination are the two most regular sources of stress. “A common problem area is where women are taking maternity leave,” she says. “Smaller businesses in particular often make mistakes here. The problem often starts with an assumption – for instance that if a woman has just had a baby she won’t want to travel, and will be more likely to want to work from home or take advantage of flexible hours. Such an assumption might well be right, but not always.”

Assumptions around disability run similar risks of landing the employer in a hot water, says Heather. “It might be taken for granted, for example, that because an employee is suffering from depression they might not want to come to work, or be invited to the office Christmas party,” she says. “A good HR professional will know how to manage this sort of situation with dialogue, and will know how to communicate potential difficulties to line managers. It’s often the employee’s line manager that talks first to the employee, and gets it wrong.”

New laws on flexible hours

The law as it applies to discrimination is a fluid thing, demanding diligence in those who have the responsibility of upholding it. As of June 30 2014, for instance, the law on flexible working is changing. The changes have come about because the government wants to increase the flexibility of people’s working hours, and make them more family friendly. The new rules have an important if indirect bearing on discrimination, warns Heather.

“For the first time, men will be entitled to the same leave for paternity as women get for maternity,” she says. “Back in the bad old days, an employer might have been looking at a choice of three women and one man for a job, and have chosen the man because he was less likely, down the line, to be taking time off after becoming a parent. But with anybody now able to ask for a flexible working pattern, this assumption is no longer valid. The man is theoretically just as likely to ask for flexibility.”

Employment tribunals

The way employment tribunals work is also changing, says Heather, with a new requirement that employer and employee sit down and discuss matters before any official hearing starts. “The idea is to stop more proceedings before they get to court,” she explains. “Depending on your viewpoint, this could be seen as limiting access to justice in the interest of cost-savings, or as promoting conciliation.”

So what qualities does the ideal HR manager require if the chance of conflict over discrimination is to be minimised? “HR managers should never be afraid to discuss things, however difficult,” says Heather. “It is far better to have a very awkward conversation up front than to wait for a problem to escalate. Sometimes people just want to be heard, and get something off their chest. That can be enough to prevent the issue going any further, and the HR professional is uniquely placed to do that.”

Another HR responsibility around discrimination is to make sure that company policy in related areas is clearly written and up to date, not just gathering dust in a cupboard. “You might have the best discrimination policy in the world, but if nobody knows about it then it is no use,” Heather concludes.

There’s no employer handbook that guarantees total workplace harmony and legislates away all potential sensitivities, but a good HR manager can go a long way towards that.