Navigating equality, diversity and inclusion (EDI) employment tribunal claims

In today’s increasingly diverse society, the promotion of equality, diversity, and inclusion (EDI) in the workplace is crucial. However, even where employers take active steps to foster a fair and respectful working environment, issues relating to EDI can still arise and lead to disputes. When such disputes cannot be resolved internally, employers can find themselves facing employment tribunal claims, which can be time-consuming and costly to defend.

This article explores the types of EDI-related issues that can lead to employment tribunal claims, and steps HR can take to reduce risk and handle any disputes that arise.

Understanding EDI in detail

Equality, diversity, and inclusion are fundamental principles that underpin a healthy and thriving workplace culture. In modern diverse workforces which typically span a wide range of different backgrounds (for example, those of different ages, genders, racial and ethnic origins, religions, sexual orientations and abilities), upholding EDI principles is essential for developing a positive work environment, as well as maintaining a strong consumer brand. Consumers expect the organisations from whom they purchase goods and services to uphold key values of fairness, inclusion and respect, and failure to do so can have significant costs from both a legal and reputational perspective.

Common issues leading to EDI employment tribunals

The following issues commonly lead to EDI-related disputes:

1. Discrimination – Allegations of discrimination based on ‘protected characteristics’ (such as race, sex, gender reassignment, age, disability, religion or belief, pregnancy and maternity, or sexual orientation) can arise in recruitment, promotion, training, and/or termination processes. A claim for direct discrimination will arise where someone with a protected characteristic is treated less favourably than others. Indirect discrimination arises where an employer puts rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at a particular disadvantage compared to those without that characteristic (if the rules or arrangements cannot be objectively justified). Employers can face particular difficulties where there is a need to balance the competing rights of employees in the workplace, for example where the rights of transgender employees conflict with those of other employees with religious and/or gender-critical beliefs.  It is important for HR to manage these types of situations carefully, to minimise the likelihood of issues escalating to a tribunal and reduce the employer’s exposure if they do.
2. Failure to make reasonable adjustments – Employers have a legal obligation to make reasonable adjustments to support employees with disabilities, and failure to do so can lead to tribunal claims. EDI issues such as mental health and menopause awareness are coming under increasing focus in the workplace and can lead to tribunal claims where employers fail to provide the necessary level of support to protect employees’ health, safety and wellbeing. Stress, anxiety and/or or depression have the potential to relate or amount to a condition falling within the Equality Act’s definition of disability and, although menopause itself is not a protected characteristic under the Equality Act, employees experiencing the menopause may be able to bring discrimination claims relying on the protected characteristics of age, sex and/or disability.
3. Harassment and bullying – Under the Equality Act 2010, there are three types of harassment: harassment related to certain ‘protected characteristics’; sexual harassment; and less favourable treatment as a result of a person’s rejection of or submission to sexual harassment. Failure to tackle instances of harassment and bullying in the workplace can have a hugely negative impact on employee wellbeing and staff retention, as well as potentially resulting in tribunal claims. Note too that, from 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will place a new duty on employers to take reasonable steps to prevent sexual harassment at work. This new duty on employers will be enforceable by the Equality and Human Rights Commission, and employment tribunals will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has breached the duty.
4. Unequal treatment – Disparities in pay, benefits, opportunities for advancement, or access to training and development based on EDI factors can result in claims of unfair treatment. For example, over recent years several large retailers have faced well-publicised, lengthy and complex equal pay claims from female store workers who have argued that they should be paid the same as warehouse operatives in the distribution centres (who are primarily male).
5. Victimisation – The law protects employees who have done or intend to do a “protected act”, such as raising concerns about EDI issues or participating in tribunal proceedings (for example, acting as a witness in support of a colleague’s employment tribunal claim). It is important that employers remain alert to the risks of victimisation claims and tread carefully when dealing with complaints from employees.

Avoiding and handling EDI-related claims

There are various proactive measures that employers should take to mitigate against the risk of EDI-related tribunal cases, and ensure they are best placed to handle any claims effectively if they do arise:

1. Establish clear HR policies – it is important to put in place comprehensive HR policies outlining what you expect from your staff in relation to EDI matters, procedures for reporting grievances, and the potential consequences of violating company policies (particularly those relating to EDI). You should regularly review your policies to make sure they remain up-to-date, and keep abreast of legislative developments (such as the introduction of statutory carer’s leave, extra redundancy protections during pregnancy and following family related leave, and changes to the statutory flexible working and paternity leave regimes).
2. Provide thorough training – offer regular training to employees and managers on EDI awareness, including unconscious bias, the importance of respectful communication, and the reporting and efficient handling of complaints. It is vital that managers know what their company policies say and how to apply them in practice, including in their wider decision-making, such as in the context of dismissals.
3. Conduct fair investigations – it is vital that you investigate any complaints or concerns relating to EDI issues promptly and impartially and that those involved understand the importance of confidentiality and sensitivity throughout the process.
4. Consult legal experts – make sure you understand your legal obligations, including best practice within your sector. Seek guidance from employment law specialists where needed to ensure EDI compliance.
5. Consider mediation – in appropriate cases, alternative dispute resolution methods such as mediation or conciliation can help to resolve EDI disputes swiftly and amicably, avoiding costly tribunal proceedings.

Horizon scanning

Finally it is worth noting that the new Labour Government plans to make significant changes to employment law.  Labour’s proposals (outlined in “Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People”) include:

• reviewing the parental leave system;
• making the right to flexible working a default for all workers from day one (as opposed to the current “right to request” flexible working);
• introducing a statutory right to bereavement leave for all workers;
• removing what Labour calls “discriminatory age bands”, which currently apply in relation to the national minimum wage;
• introducing new requirements for employers with over 250 employees to produce “Menopause Action Plans” and to report on their ethnicity and disability pay gaps; and
• taking further action to tackle workplace harassment (for example, to update whistleblower protection for women who report sexual harassment at work and “strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts”).

The Government has also indicated that it will extend the time limits that apply for bringing employment tribunal claims (currently three months for most employment claims), meaning we could see an increase in the volume of claims making their way through the tribunals.  It remains to be seen, of course, whether all of the changes the Labour Party promoted during its general election campaign will come to fruition (and if so, when, as the Government has made clear that some changes will require public consultation before they can be implemented, which will take time).  Certainly, though, employers should be mindful that significant changes to employment law are likely to lie ahead.

“EDI employment tribunals can take up a great deal of management time and may have significant cost and reputational implications. These risks underline the importance of taking active steps to promote fairness, respect and inclusivity in the workplace, as well as carefully managing any disputes that may arise in order to minimise a company’s potential exposure.” Felicity Staff, Senior Legal Adviser, Make UK

Make UK’s team of highly skilled employment law experts is one of the largest group of specialists in the UK and operates at the forefront of government policy and legislation changes.  Whether you need day-to-day advice or robust support with disputes and complex tribunal cases, we are here to help. We currently achieve a 95% win-rate at employment tribunal.  To find out more about how we can support you, email [email protected].

Our employment law advisers and HR consultants are very experienced in assisting companies with EDI-related matters, including investigation processes (either in a supporting role or running the process as independent investigators). We also offer a package of support aimed at preventing sexual harassment at work, including a template Anti-bullying and harassment policy (including guidance notes), employee surveys (Pulse surveys) and anti-harassment training for your workforce (micro-awareness video and/or half day workshop). For further details, email [email protected] or click here.

To attend our Autumn 2024 Employment Law Updates, click here.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on EDI-related matters. You can also access further information, including template policies and drafting guidance, in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, our expert HR and legal advisers can offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].