Law in Practice: Minimising sex discrimination claims

Sex discrimination in the workplace has always been a contentious issue, and a recent gender pay gap report by the Equality and Human Rights Commission indicates it’s still a problem in the UK’s financial sector. The report found that men receive up to five times more in bonuses than women. The commission said the gender divide was triggered by the recruitment process, with women being employed on much lower starter salaries than male colleagues.

Recruitment, promotion and pay, bullying and harassment, and dismissal and redundancy policies are all potentially ripe areas for sex discrimination claims. So how can HR practitioners ensure that their companies don’t fall foul of discrimination laws and minimise the risk of negative exposure?

Making sure you get the recruitment process right is certainly a good place to start, says Phil Clarke, director of HR consultancy Independent. “The main point of risk in any recruitment procedure is at the interview stage. All companies should ensure that managers at every level are trained to carry out efficient and fair interviews. All candidates should experience a similar interview format.”

Technology can also play a significant role in the application process to ensure that candidates from all backgrounds and genders are being attracted at each stage of the process, Clarke adds.

When it comes to promotion and pay, employers must have a consistent and transparent performance management system to justify promoting one employee, in a similar role with comparable experience, over another.

“All employees should be performance-managed against specific objectives. A strong talent and performance management approach will then identify those individuals ready for promotion and gender should not be any consideration,” Clarke explains.

Pay structures should also be clearly set against benchmarked data and based on the roles and levels within the organisation. Pay banding and consistency is fundamental.

Equal opportunities

Anyone who has watched an episode of the popular TV show Life on Mars, set in a police station in the 1970s will be aware that sex discrimination is often down to the attitudes and behaviour of staff.

The recent case of Gill Switalski, former head of legal affairs at F&C Asset Manage‑­ment, who is claiming £13m in compensation for workplace bullying after alleging that she was treated less favourably than her male colleagues, highlighted this. After she won the latest round in a tortuous legal battle, Switalski’s case was referred for a compensation hearing in January 2010.

Employees may have inherent or unconventional prejudices or be unaware of what is and isn’t acceptable in the workplace. Having an equal opportunities policy is one thing, but staff must be fully briefed and aware of all aspects of the policy and understand how it applies to them.

Karen Grant, a solicitor at Cheyney Goulding law firm, says an anti-harassment policy can also be beneficial. “It should set out what constitutes inappropriate sexist or sexual behaviour and how the business will handle any complaints made by employees,” she explains.

Sticking to strict disciplinary or grievance procedures in any cases where the policy has been breached will also protect the employer if the claim becomes public.

“The employer can show that they took all steps to address, investigate and deal with the matter in line with the company’s policies that are in place and regularly monitored,” Grant says.

Settle if possible

The Switalski case also highlights the damage that an employer faces in both costs and reputation if a sex discrimination claim is made public. Employers can opt to try and settle a claim before it gets to employment tribunal stage.

Judith Harris, legal director at law firm Addleshaw Goddard, says employers need to assess whether there is any merit in a claim and, if they decide to offer an out-of-court settlement, to do so quickly to avoid costs racking up and the risk of the employee disclosing information.

“Settlement offers can be made direct to the employee, or via the Acas mediation service. Mediation is increasingly common in discrimination claims, particularly where the claimant is still employed, as this can help to preserve relationships,” Harris explains.

The major advantage of an out-of-court settlement is, of course, avoiding bad publicity, but what can an employer do to avoid negative exposure if the claim has already gone to tribunal stage?

Not much, says Harris. “Tribunal hearings are public and can be reported on unless there is a restricted reporting order, but these are rare and are only usually made where there are allegations of serious sexual harassment.”

Case study: Johal v Equalities and Human Rights Commission

Essentially, once a sex discrimination claim has reached tribunal stage, it’s more a case of damage limitation than prevention. “Once the claim gets to tribunal there is little that can be done to stop publicity,” Harris says.

The Equalities and Human Right Commission (EHRC) found itself embroiled in allegations of hypocrisy after one of its employees claimed she was “mistreated, penalised and pushed out” while on maternity leave.

Brid Johal, senior PA to the director of the commissioner’s office, says she was deliberately not told about a promotion opportunity while on maternity leave in 2008 and was unfairly treated as a result.

She claims that her role was downgraded during the equality watchdog’s restructure from the former Commission for Racial Equality to the EHRC. She was transferred after working as a PA for seven years to the newly created level 4 post of office manager as part of the restructure.

The commission denies sex discrimination and says that Johal was informed of the new post at the same time as her colleagues, when an e-mail was circulated in February 2008.

Johal’s line manager, Debbie Woods, says she had discussed the new structure with her and that she did not express any interest in that particular role.

The case continues.

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