Profiting from diversity: a guide to harnessing diversity for the benefit of your business




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Equality law


This section provides an overview of current equality laws in the UK. It doesn’t constitute legal advice, which should be sought from qualified practitioners, but provides a basis on which to build anti-discrimination and harassment policies that suit your organisation. Ensuring equality at work is a key part of making diversity work and contributes to an environment in which employees can focus on work without distraction.

Discrimination


It’s illegal to discriminate against people on the grounds of gender, gender reassignment, marital status, sexual orientation, race, ethnic origin, national origin, colour, nationality, religion or belief, disability, or sexual orientation.


Discrimination can be:


  • direct – treating someone less favourably than someone else for one or more of the

reasons above

  • indirect – making a rule that appears to apply equally to everyone but that:

    • puts a particular group at a disadvantage, and

    • cannot be shown to be appropriate or necessary to achieve a legitimate business aim

  • reasonable adjustments – failing to make a reasonable adjustments where needed by a disabled applicant or employee

  • harassment – subjecting someone to unwanted conduct for one or more of the reasons above and that violates that person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive working environment for them. People have different perceptions of the distinction between harassment and ‘banter’, but employment tribunals often decide whether harassment has taken place by assessing the reasonable perceptions of the employee complaining of harassment, rather than the intentions of the perpetrator

  • victimisation – treating an individual less favourably because he or she has made a complaint, claim or allegation of discrimination, acted as a witness in relation to a complaint of discrimination, or assisted someone to bring a claim

  • discriminating against or harassing someone before or after the employment stage, for example in relation to a job advert, application or reference

  • instructions to others or putting pressure on others to discriminate

  • aiding acts of discrimination


Parents of children under six (or disabled children under 18) now have the right to ask for flexible working. In order to ensure that you are not discriminating against them, you should try to accommodate as many requests as possible.

Positive action


There is often confusion about the distinction between positive action and positive discrimination. Equality legislation allows you to take positive action to tackle marked levels of historical under-representation of people from certain groups (such as women, lesbians and gays and people from BAME backgrounds) in particular roles, professions or areas (such as senior management). In these circumstances you are allowed to encourage applications for jobs or promotion from those specific under-represented groups. The law also allows you to provide training courses to assist those in under-represented groups to develop skills to the required level to compete for jobs and promotion opportunities.


This could include:


  • training on:

    • improving application forms

    • developing interview techniques

    • developing confidence or assertiveness

  • retraining people (such as women returning to work after career breaks) whose skills have become rusty or out of date

  • developing management skills to encourage people from under-represented groups to

  • apply for promotion

  • providing career counselling and guidance for working women and others wishing to return to work


The law does not allow you to positively discriminate, i.e. to recruit or promote people on the basis of, for example, their gender or ethnicity.


The sole exception to this is in relation to disability. Disability discrimination law imposes no limits on the steps that companies can take to advantage disabled applicants or employees. Some employers have for instance advertised to recruit solely disabled people. Indeed in some circumstances it may not only be permissible but required to positively discriminate in favour of a disabled employee as a form of reasonable adjustment. For example, a council was held to be required to redeploy to an employee who was no longer able to work in their current post straight into a more skilled, better paid position rather than requiring her to compete with other applicants.

Policies


To tackle and eliminate discrimination and harassment you need to develop appropriate policies explaining what you expect of employees, what is unacceptable and the consequences of unacceptable behaviour. Where employees feel they are being harassed or suffering discrimination, there should be clear information on what they can do about it. Senior managers should set an example to the rest of your organisation, and constantly communicate and reinforce your policies.


You also need to ensure that your human resources and other policies are transparent and free from bias. Simply having anti-discrimination policies doesn’t necessarily mean that your business isn’t discriminating. This particularly applies to your recruitment, performance management, promotion and pay policies. Be aware in particular that you may be indirectly discrimination if a rule or criteria disadvantages particular groups – unless you can show that it is legally justified.


For policies to be more than just statements of intent, there must be leadership and training to accompany the policies, and monitoring of the policies to ensure that they are being correctly implemented.


For example, one employer reviewed its policies and found them to be free from bias, well communicated and transparent. However, statistics showed that BAME employees suffered disadvantages in pay and promotion. Analysis revealed that the cause was the way in which the mainly white managers applied their policies. This situation arose due to the managers’ assumptions about BAME people’s communication styles, aspirations and ambitions.


In order to combat these assumptions, the company provided cultural awareness and race equality training for its managers. Managers were then able to improve their performance management, and the minority employees were able to progress through the company more easily, without experiencing barriers of discrimination. Scenarios such as this are common, and illustrate the importance of ensuring that policies are reinforced.

Legislation


Here are the main laws that you will need to be aware of in the areas of equality and diversity:


  • The Equal Pay Act 1970 outlaws discriminatory pay and provides for women and men who are doing work of equal value to be paid the same

  • The Sex Discrimination Act 1975 prohibits sex discrimination in employment, education, the provision of goods, facilities and services, and the disposal or management of premises. It also prohibits discrimination in employment against married people. There is a positive duty on the public sector to promote gender equality (Equality Act, 2006)

  • The Race Relations Act 1976, the Race Relations (Amendment) Act 2000 and the Amendment Regulations 2003 prohibit discrimination against anyone on the grounds of race, colour, nationality (including citizenship), or ethnic or national origin. This applies to employment, planning, housing, the exercise of public functions, and the provision of goods, facilities and services. Public sector bodies also have a duty to promote race equality and good relations between people from different racial groups

  • The Disability Discrimination Act 1995 and the Disability Discrimination (Amendment) Act 2005 outlaws disability discrimination. They protect disabled people in the areas of employment, access to goods, facilities and services, the management, buying or renting of land or property, and education. Since December 2006, public sector bodies have had a duty to promote disability equality

  • The Employment Rights Act 1996 and the Employment Act 2002 give a range of rights to parents. These include the right to request flexible working and rights to maternity, paternity, adoption and parental leave and/or pay

  • The Work and Family Act 2006 gives carers of adults the right to request flexible working

  • The Sex Discrimination (Gender Reassignment) Regulations 1999 outlaw discrimination in employment and vocational training on the grounds of gender reassignment

  • The Part-time Workers Regulations 2000 make it unlawful for a part-time worker to be treated less favourably than a comparable full-time worker. This covers areas such as pay, pensions, training, holidays, career breaks, sick pay, maternity and parental pay, promotion and redundancy

  • The Employment Equality (Sexual Orientation) Regulations 2003 outlaw discrimination in employment and vocational training on the grounds of sexual orientation

  • The Employment Equality (Religion or Belief) Regulations 2003 outlaw discrimination in employment and vocational training on the grounds of religion or belief

  • The Employment Equality Age Regulations 2006 outlaw discrimination in employment and vocational training on the grounds of age or perceived age

  • The Gender Recognition Act 2004 gives transsexual people the legal right to live in their acquired gender, and prevents unauthorised disclosure of a transsexual person’s transition or previous gender by any person who has acquired that information in an official capacity (including line managers and human resources employees)

  • The Civil Partnership Act 2004 creates a legal relationship for lesbian and gay couples, aged 16 and over. It enables same-sex couples to gain legal recognition for their relationship, and gives lesbian and gay couples the same legal benefits and responsibilities as heterosexual married couples, including rights to survivor pensions, recognition for immigration purposes, equal treatment for tax purposes, and next of kin rights

  • Equality Act 2006 provides for equal treatment in the provision of goods and services irrespective of religion or belief or sexual orientation



Codes of Practice


Codes of Practice are not legal documents in themselves, consequently a failure to observe any provision is not a breach of the law. However, the Codes establish good practice and are admissible in evidence before courts and tribunals, which are entitled to take the provisions into account if they are relevant.


The three most widely used Codes of Practice are the ones that support the sex, race and disability discrimination legislation:


  • Code of Practice on Employment and Occupation (2004) for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability

  • Code of Practice on Racial Equality in Employment (2005) for the elimination of

racial discrimination

  • Code of Practice on Sex Discrimination (2005) for eliminating discrimination on the grounds of sex and marital status


In addition, the following guides have been produced in the areas of equal pay, sexual orientation, and religion and belief. These guides are advisory and do not have the same legal status as the Codes of Practice listed previously:


  • Employment Equality (Sexual Orientation) Regulations (2003) Guidance Document, ACAS

  • Employment Equality (Religion or Belief) Regulations (2003) Guidance Document, ACAS

  • Employment Equality (Age) Regulations (2006) Guidance Document, ACAS

  • Code of Practice on Equal Pay (2003) Equal Opportunities Commission

  • there are also codes of practice on the public sector duties to promote disability, race and gender equality



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