Equal opportunities and anti-harassment: Ready to review?

As a result of recent changes in employment law, you should consider reviewing your equal opportunities policy or, if you don’t have one, create one as soon as possible. Below are some practical points to bear in mind.

Why have an equal opportunities policy?

The Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission all provide in their Codes of Practice that an employer should have an equal opportunities policy. Such policies act as a statement by employers that they will not discriminate on any of the prohibited grounds.

The existence of a properly implemented and policed policy will be essential in an employer’s defence if it faces a discrimination claim. An employer is vicariously liable for the discriminatory actions of its employees, unless it can show it took ‘all reasonable steps’ to prevent that discrimination from happening.

When considering this issue, the first question a tribunal will ask is whether the employer has such a policy. So an employer who has no policy or an inadequate one may be at a significant disadvantage, unable to rely on the ‘reasonable steps’ defence.

Communicating the policy

Employers should make sure they publicise the policy – mere reference to its existence in a contract or handbook is unlikely to be adequate – and repeat that publicity with regular reminders. The Codes of Practice recommend that copies are made available to all employees and job applicants, placed on noticeboards and that awareness and equality training is provided to all employees. Those who have responsibility for recruitment and management are likely to need more specialist training.

Tribunal cases regularly highlight these points. For example, in the case of Browne v John Edward Crowther Limited, the employer was found liable for taunts and abuse that were directed by employees at another employee who had a severe stammer (and who qualified as disabled under the Disability Discrimination Act).

The tribunal commented that although the employers had a ‘perfectly serviceable’ equal opportunities policy, the steps it took to bring the policy to the attention of its workforce (merely displaying the policy on its notice board) and that behaviour of this sort would not be tolerated, were inadequate.

Recent legislative changes

Over the last couple of years, new strands of discrimination legislation have come into force, such as the Religion and Belief Regulations and the Sexual Orientation Regulations. The Disability Discrimination Act has also recently been updated, the protection afforded under the Sex Discrimination Act has been extended to those undertaking unpaid work experience and new rules in relation to civil partnership mean that, as well as discrimination on grounds of marital status, discrimination on the grounds of civil partner status is also now unlawful. This October, the new age discrimination legislation will come into force.

The time is now ripe for reviewing any existing policy to ensure that both recent changes are covered and that you are prepared for the future changes.

Sarah Keeble is an employment partner at Olswan

Equal opportunities policy – what to include

Key factors to consider when putting together an equal opportunities policy and how to monitor it

Key provisions

  • A statement confirming that the company is committed to equal opportunities for all staff and job applicants

  • Confirmation that the company does not discriminate on any of the (current) relevant grounds. These include:

  • Sex

  • Sexual orientation

  • Gender reassignment

  • Marital or civil partnership status

  • Race (which includes colour, nationality, ethnic or national origin)

  • Religion or belief

  • Disability

  • Part-time workers or fixed-term employee status

  • Age (from October 2006).

  • Discrimination includes not only direct and indirect discrimination, but also victimisation and harassment and often policies explain these concepts. Many equal opportunities policies also cover bullying.

Other recommended provisions

  • Give examples of unacceptable behaviour, so employees are in no doubt as to what they may and may not do. Specifically state that as well as conduct at work, conduct at or near the workplace and at work-related social functions is also relevant.

  • Include a procedure for handling complaints. As all matters involving discrimination issues are particularly sensitive, confidentiality will be a key issue to address, although bear in mind that ultimately it may be necessary to disclose details of the investigation (and any subsequent disciplinary process) in any later tribunal proceedings. Many policies provide, as an initial first step, the option of resolving problems informally, if this is possible.

  • Set out the circumstances in which disciplinary action may ensue against any employee who is found to have breached the policy. Specify that discrimination, harassment or bullying will be considered to be serious disciplinary misconduct.

  • Specify how the equal opportunities policy inter-relates with other relevant policies you may have, such as a grievance or whistleblowing procedure.

  • Take steps to ensure all your employees (and, where relevant, contractors and agency workers) are aware of the policy and their obligations to comply with it. Proper training is essential, together with regular reminders and occasional refresher training.

Monitoring effectiveness

  • The Codes of Practice also recommend monitoring to see whether the policies are effective. For example, a workforce that comprises employees from a broad spectrum of ethnic backgrounds would be a good indication that an equal opportunities policy is working effectively to ensure applicants for jobs in the organisation are not discriminated against on grounds of race or ethnic origin.

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