Discrimination June 2010


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One-day training course for an independent production house in London following a tribual ruling regarding disability discrimination.

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Discrimination June 2010

  1. 1. Avoiding claims of discrimination<br />by Fluid <br />June 2010<br />
  2. 2. Page 2<br />Contents<br />3-4 Introduction to Fluid<br />5-6 Legal considerations<br />7-8 Discrimination Law Review-green paper<br />9-10 Acknowledgement of bias<br />11-12 Exercise A<br />13-14 Ageism<br />15-25 Disability<br />26-27 Dyslexia<br />28-29 Gender<br />30-31 Race<br />32-33 Religion<br />34-35 Sexual orientation<br />36-37 Smoking<br />38-39 National Dismissal Register<br />40-41 As a victim of discrimination<br />42-43 Yes or no quiz<br />44-48 Equality Act<br />49-50 Case studies<br />51-52 Exercise B<br />53-54 Conclusion and questions<br />
  3. 3. Page 3<br />Introduction<br />
  4. 4. Page 4<br />Introduction to Fluid<br />Fluid Consulting Limited (Fluid) is a specialist human resources consultancy headed by Tim Holden MCIPD <br />10 years in banking<br />10 years in Human Resources consultancy<br />Fluid trading since 2006<br />The core services provided by Fluid are:<br /><ul><li>Retention
  5. 5. Selection</li></ul>- Attraction<br />- Remuneration & Reward <br />- Outplacement<br />- Training & HR consultancy<br />
  6. 6. Page 5<br />Legal considerations<br />
  7. 7. Page 6<br />Legal considerations<br /><ul><li>Legislation
  8. 8. Types of discrimination
  9. 9. Direct discrimination
  10. 10. Harassment and segregation
  11. 11. Indirect discrimination
  12. 12. Victimisation
  13. 13. Genuine Occupational Requirement
  14. 14. Cost of discrimination</li></li></ul><li>Page 7<br />Discrimination Law Review-green paper<br />
  15. 15. Page 8<br />Discrimination Law Review-green paper<br /><ul><li>Introduce an equal pay moratorium where employers carry out pay audits and have a set period free from legal challenge within which to identify any inequalities identified
  16. 16. Develop an ‘equality check tool’ for employers to use, as recommended by the Women and Work Commission
  17. 17. Consider introducing a voluntary equality standard scheme, which could be an independently assessed, accredited standard
  18. 18. Important role for the Commission for Equality and Human Rights to develop positive action guidance
  19. 19. Extending positive duties in the public sector to cover all grounds of discrimination</li></li></ul><li>Page 9<br />Acknowledgement of bias<br />
  20. 20. Page 10<br /><ul><li>Need to accept we are biased; without this recognition there can be no progress
  21. 21. Need to understand what biases we really have.
  22. 22. Need to be able to discuss these biases with each other-need to ensure we challenge each other and remain vigilant and alert, not only to our biases but to those of others around us</li></ul>Acknowledgement of bias<br />
  23. 23. Page 11<br />Exercise A<br />
  24. 24. Page 12<br />Exercise A<br />
  25. 25. Page 13<br />Ageism<br />
  26. 26. Page 14<br />Ageism<br /><ul><li>Treating people differently on the grounds of age will be direct discrimination unless it can be justified objectively
  27. 27. To prove ‘objective justification’ employers have to show their discriminatory actions were a ‘proportionate means of achieving a legitimate aim’
  28. 28. Employers concerned about discrimination should identify what they want to achieve, come up with proposals, consult with stakeholders, consider alternatives and take reasonable action
  29. 29. Employers can safely retire employees at 65, if they follow the retirement procedures</li></li></ul><li>Page 15<br />Disability<br />
  30. 30. Page 16<br />Disability 1 of 10<br /><ul><li>Employers need to be aware of the need to make reasonable adjustments in cases where a provision, criterion or practice places a disabled person at a substantial disadvantage
  31. 31. An employer has to take reasonable steps to prevent that disadvantage, and there is no defence of justification for failure to comply
  32. 32. The DDA provides non-exhaustive lists of steps to be considered but there are still many grey areas for employers</li></li></ul><li>Page 17<br />Disability 2 of 10<br /><ul><li>Employees injured at work may sue for damages in a personal injury claim. If they are disabled, there may also be a discrimination claim under the DDA, if they can prove that the employer has failed to comply with the act’s premises regulations
  33. 33. Employers’ insurance policies generally only cover bodily injuries to employees rather than ancillary discrimination claims that may also arise
  34. 34. Case law suggests that secondary injury to feelings claims are likely to cost more than £1000</li></li></ul><li>Page 18<br /><ul><li>HOW FAR SHOULD THE DDA GO?
  35. 35. Certain conditions are deemed ‘disabilities’ for the DDA, including blindness, severe disfigurements, cancer and HIV
  36. 36. In other cases, an individual’s condition must meet the statutory definition of disability to be protected under the DDA-but this can often lead to uncertainty particularly in the case of mental impairment
  37. 37. Certain conditions are excluded from the DDA such as substance addiction-however providing an impairment falls within the definition of disability its cause is irrelevant
  38. 38. Employers should audit all policies and procedures for disability bias and regularly review the effectiveness of procedures for identifying potential disabilities and reasonable adjustments</li></ul>Disability 3 of 10<br />
  39. 39. Page 19<br />Disability 4 of 10<br /><ul><li>Disability-related discrimination occurs when someone is treated less favourably “ for a reason that related to that person’s disability” than others “to whom that reason does not or would not apply”
  40. 40. Establishing disability-related discrimination means asking: Has the disabled person received less favourable treatment for a reason relating to the disability? If so, can the less favourable treatment be justified as being “material to the circumstances of the particular case and substantial”?</li></li></ul><li>Page 20<br />Disability 5 of 10<br /><ul><li>CHANGES MADE BY EMPLOYERS TO RECRUITMENT PRACTICES
  41. 41. Offered a guaranteed interview to any person with a disability who meets essential criteria for the job
  42. 42. Included text in recruitment materials to show employer welcomes applicants with disabilities
  43. 43. Changed wording and/or images in job ads to give positive impression about commitment to employing people with disabilities
  44. 44. Modified the content of person specifications and/or job descriptions</li></li></ul><li>Page 21<br />Disability 6 of 10<br /><ul><li>CHANGES MADE BY EMPLOYERS TO RECRUITMENT PRACTICES
  45. 45. Modified the organisation’s website to ensure it is accessible to people with disabilities
  46. 46. Made alterations to improve interview access for applicants with disabilities
  47. 47. Offered to provide an application form in alternative formats
  48. 48. Changed application form to make it easier for people with disabilities to complete
  49. 49. Advertised vacancies in the disability press to attract applicants
  50. 50. Sent organisation’s diversity/disability policy to applicants</li></li></ul><li>Page 22<br />Disability 7 of 10<br /><ul><li>MAKING ADJUSTMENTS
  51. 51. Accommodating the needs of disabled workers extends way beyond installing a ramp or adapting toilet facilities. Forward-thinking employers go out of their way to make the jobs of disabled employers easier and fit in more flexibly to the business, with changes that include:
  52. 52. Employing signers to enable deaf people to attend important meetings
  53. 53. Identifying products by colour codes rather than numbers
  54. 54. Flashing lights for deaf employees and vibrating alerts for blind workers</li></li></ul><li>Page 23<br />Disability 8 of 10<br /><ul><li>Alterations to heavy doors for multiple sclerosis sufferers
  55. 55. Assisting with costs for wheelchairs, hearing aids etc.
  56. 56. Allowing dyslexic employees to dictate reports rather than to write them down
  57. 57. Disabled car parking adjacent to the office
  58. 58. Providing an appropriate environment for hearing dogs/guide dogs
  59. 59. Painting doorways in bright colours for the visually impaired</li></li></ul><li>Page 24<br />Disability 9 of 10<br /><ul><li>REASONABLE ADJUSTMENTS
  60. 60. Conducting a proper assessment of what reasonable adjustments may be required
  61. 61. Altering hours or the place of work
  62. 62. Reallocating duties to another employee
  63. 63. Modifying disciplinary or grievance procedures or redundancy selection criteria</li></li></ul><li>Page 25<br />Disability 10 of 10<br /><ul><li>FACTORS TAKEN INTO ACCOUNT WHEN DECIDING WHETHER A STEP IS REASONABLE
  64. 64. Likelihood of the adjustment removing or reducing the disadvantage to the disabled person
  65. 65. The nature of the employer’s activities and the size of its undertaking
  66. 66. The costs the employer will incur and the resources/assistance available
  67. 67. The disruption to the employer’s organisation</li></li></ul><li>Page 26<br />Dyslexia<br />
  68. 68. Page 27<br />Dyslexia<br /><ul><li>Know the signs
  69. 69. Seek confirmation
  70. 70. Provide support
  71. 71. Use technology
  72. 72. Look at your practices
  73. 73. Consider individual needs
  74. 74. Seek specialist help
  75. 75. Increase awareness</li></li></ul><li>Page 28<br />Gender<br />
  76. 76. Page 29<br />Gender<br /><ul><li>Equal pay
  77. 77. Glass ceiling
  78. 78. Legal situation
  79. 79. Recent developments</li></li></ul><li>Page 30<br />Race<br />
  80. 80. Page 31<br />Race<br /><ul><li>Arrangements for deciding who should be offered employment
  81. 81. Terms on which employment is offered
  82. 82. Situations in which an employer refuses or deliberately does not offer someone a job
  83. 83. Way in which access to opportunities for promotion, transfer or training, or any other benefit, facilities or services is provided
  84. 84. Dismissal or where someone has been subjected to any other disadvantage</li></li></ul><li>Page 32<br />Religion<br />
  85. 85. Page 33<br />Religion<br /><ul><li>A dress code requiring employees to act against their religious beliefs risks being indirectly discriminatory, although it may be possible for an employer to objectively justify such a code
  86. 86. Most religious observances can be accommodates in the workplace and employers should be reasonable in their approach to dress
  87. 87. An employee who loses a claim for direct or indirect discrimination, but can show that they were treated less favourably than other people after making the allegations, might still bring a successful claim of victimisation</li></li></ul><li>Page 34<br />Sexual orientation<br />
  88. 88. Page 35<br />Sexual orientation<br /><ul><li>The Employment Equality (Sexual Orientation) Regulations 2003 provide protection from discrimination for all employees, whatever their sexual orientation
  89. 89. Good employers have developed anti-harassment policies and training programmes that incorporate sexual orientation, and many are starting to include orientation in workforce monitoring programmes</li></li></ul><li>Page 36<br />Smoking<br />
  90. 90. Page 37<br /><ul><li>A dismissal of an employee breaking the smoking ban is likely to be fair if the employer’s no-smoking policy:
  91. 91. Specifies that smoking in an unauthorised place is breaking the law, and will result in disciplinary action and possibly dismissal
  92. 92. Has been communicated to all employees and has been applied consistently
  93. 93. Treating employees differently for breaking the smoking ban could result in claims for breach of mutual trust and confidence and constructive dismissal</li></ul>Smoking<br />
  94. 94. Page 38<br />National Dismissal Register<br />
  95. 95. Page 39<br />National Dismissal Register<br /><ul><li>The use of the National Dismissal Register presents big risks for organisations in respect of:
  96. 96. Discrimination claims
  97. 97. Data protection compliance
  98. 98. Defamation actions
  99. 99. Unfair dismissal claims
  100. 100. Damage to reputation if any of the above claims are made</li></li></ul><li>Page 40<br />As a victim of discrimination<br />
  101. 101. Page 41<br />As a victim of discrimination<br /><ul><li>Don’t let the situation fester
  102. 102. Keep a diary of incidents which record how you felt as well as the bare facts
  103. 103. Stay cool and rational in any discussions
  104. 104. Follow the proper procedures if the discrimination is unlawful
  105. 105. Remember that you are entitled to the same support mechanisms as anyone else</li></li></ul><li>Page 42<br />Yes or no quiz<br />
  106. 106. Page 43<br />Yes or no quiz<br /><ul><li>1. Calling a colleague “the postroom boy” or the “girl from reception”
  107. 107. 2. Fixing a maximum age limit for a job when recruiting
  108. 108. 3. An unfair dismissal claim by a 68 year-old
  109. 109. 4. Giving a 40th birthday card that says “now you’re over the hill”
  110. 110. 5. Awarding sabbaticals after 10 years’ service
  111. 111. 6. Employing young workers in a high street fashion store to attract young shoppers</li></li></ul><li>Page 44<br />Equality Act<br />
  112. 112. Page 45<br />Equality Act 1 of 4<br /><ul><li>WITH EFFECT FROM OCTOBER 2010
  113. 113. The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport.
  114. 114. Changing the definition of gender reassignment, by removing the requirement for medical supervision.
  115. 115. Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers. </li></li></ul><li>Page 46<br />Equality Act 2 of 4<br /><ul><li>WITH EFFECT FROM OCTOBER 2010
  116. 116. Clearer protection for breastfeeding mothers; Applying the European definition of indirect discrimination to all protected characteristics.
  117. 117. Extending protection from indirect discrimination to disability.
  118. 118. Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment.
  119. 119. Applying the detriment model to victimisation protection (aligning with the approach in employment law). </li></li></ul><li>Page 47<br />Equality Act 3 of 4<br /><ul><li>WITH EFFECT FROM OCTOBER 2010
  120. 120. Harmonising the thresholds for the duty to make reasonable adjustments for disabled people. Extending protection from 3rd party harassment to all protected characteristics. Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.
  121. 121. Allowing claims for direct gender pay discrimination where there is no actual comparator. Making pay secrecy clauses unenforceable. </li></li></ul><li>Page 48<br />Equality Act 4 of 4<br /><ul><li>WITH EFFECT FROM OCTOBER 2010
  122. 122. Extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment. Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce. Harmonising provisions allowing voluntary positive action.</li></li></ul><li>Page 49<br />Case studies<br />
  123. 123. Page 50<br />Case studies <br />
  124. 124. Page 51<br />Exercise B<br />
  125. 125. Page 52<br />Exercise B<br />
  126. 126. Page 53<br />Conclusion & Questions<br />
  127. 127. Page 54<br />Conclusion<br />Summary<br />Questions<br />