Although the number of equal opportunities claims (sex, race and disability
discrimination) are statistically fewer than those for unfair dismissal and for
unlawful deduction of wages, most employers who have been involved in defending
such proceedings will know that these cases are time consuming and often
complex.
Particular problems for employers
The main difficulty with equal opportunities claims for employers is the
need in practical terms to prove a negative. Typically, the applicant will say
that they have not been promoted or given access to various privileges or
benefits which some of their colleagues have, and then point to their sex, race
or disability, concluding that this treatment was on that ground. The employer
then has to convince a potentially sceptical tribunal that the discrepancy in
treatment was in fact due to other grounds.
Evidencing these issues can be difficult when day-to-day decisions are often
taken without a conscious detailed analysis or written down reasons. Of course,
such decisions can be coloured by a biased attitude or stereotypical
assumptions, which may often be subconscious. The tribunal’s job is to
establish whether it was.
Some other issues may, however, further handicap an employer. Employers have
long been encouraged to monitor their workforces in terms of ethnic background
and to review how women are treated (and other categories of workers which are
usually female-dominated, such as part-timers, term time only or fixed-term
contract workers).
Failing to have this information can make the employer look as if equal
opportunities are ignored. Obtaining the information, however, except by way of
a question on an application form, may sometimes be tricky.
Similarly, employers should review from time to time the statistical
breakdown of their management in terms of gender and ethnic background.
Employers who, for whatever reason, and however legitimately, have a
"homogeneous" group at management level, but a more diverse group at
more junior levels, could find themselves accused of having glass ceilings.
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Not having a policy at all, particularly for larger employers, is
problematic. Almost as bad is the situation where employers do have a policy,
lying dustily in a staff handbook or on the intranet, which has never been
publicised or implemented. The tribunal will also ask whether the company has
arranged training in the area of equal opportunities.
Increasingly, employers are looking for cost-effective ways of training
particularly middle and senior management on equal opportunities issues both to
avoid claims and show that they are they are implementing the equal
opportunities policy.
