Creating a Diverse Workplace in Recruitment
We all know that a diverse workforce is a good thing. There are countless surveys telling us this, and those organisations that have “nailed” diversity are generally more productive and do much better in employee satisfaction surveys. Creating a truly agile organisation, with all employees able to work in a way that makes them productive and engaged, has many positive benefits for business. This article looks at ways in which employers can help achieve this and the legal risks in getting it wrong.
The legal position
From a legal perspective, only protected characteristics are covered by the Equality Act 2010 (“EA”) and can form the basis of a discrimination claim. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The EA applies to all stages from recruitment, throughout employment and post employment.
There are four different types of discrimination: direct, indirect, harassment and victimisation.
Direct discrimination occurs where someone is treated detrimentally because of his or her protected characteristic. Examples of direct discrimination can include:
Indirect discrimination requires a person to show that the practice applied by the employer puts people with protected characteristics at a group disadvantage and they are individually disadvantaged by that practice. An example of indirect discrimination is where the employer requires shift work, including night work. This is likely to put women with child caring responsibilities at a group disadvantage as they are less likely to be able to work nights. If the employer can show a genuine business need for night work and that this requirement is proportionate, a claim of discrimination can be defeated. This illustrates the importance of employers scrutinising the essential criteria for a role and ensuring that each essential criterion is genuinely essential.
Harassment is defined as any unwanted conduct relating to a person’s protected characteristic which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Harassment can take many forms. It may be obvious or violent such as a prolonged campaign of bullying or it may be unintentional or subtle such as a simple one off remark. For example, an interviewer makes a homophobic joke during an interview. This can amount to harassment even when the person is not gay and the interviewer knows that.
Victimisation occurs where someone raises a complaint about an employee’s behaviour and is then treated less favourably for no other reason than because they have made that claim or complaint. In the above example, victimisation occurs where the person interviewed complains about the fact that a homophobic joke was made, and for that reason, is not offered the job.
If someone tells you about his or her protected characteristic during an interview, that disclosure must remain private and confidential. If an employer “outs” someone’s protected characteristic without their permission then such conduct can amount to a breach of that person’s privacy and the Data Protection Act 1998. Furthermore, if appointed, an employee could resign and claim constructive unfair dismissal on the basis they have been discriminated against in the workplace. Therefore, employers must take reasonable steps to ensure confidentiality at work is maintained regarding any disclosures and that policies are in place to address any issues.
If any of the above practices takes place, this can expose an employer (and the alleged perpetrator personally) to the risk of Tribunal claims. There is no requirement for any length of service to make a claim of discrimination.
In addition, whilst the maximum compensatory award for unfair dismissal claims is capped, a discrimination award is unlimited. Therefore, the consequences for employers who get it wrong and fail to prevent discrimination in the workplace can be significant.
Whilst the legalities are important, as we have seen, creating an open and inclusive workplace culture where everyone feels valued and respects their colleagues is key in creating a diverse workplace.
Practical guidance to improving diversity in recruitment
By Karen Harvie
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