Workplace discrimination: what employers need to consider

As much as any employer would argue that their organisation is fair and honest, workplace discrimination does happen and it’s more common than you would think.

Discrimination in the workplace is not only harmful for its employees, but it places an employer at risk from claims for compensation, legal costs and damage to its reputation.

In recent months, employers and employees alike have faced major disruption and changes as a result of the Covid-19 pandemic. At first, there was working from home to navigate, then the Government’s furlough scheme, and now, as we near the end of that job retention scheme, the possibility of redundancies is something many employers can no longer put off.

Making redundancies is one of the most stressful decisions an employer has to make, let alone during a pandemic and now, during a recession. Many employers will (and should) seek expert legal advice when entering redundancy proceedings, however, there is the risk of an increase in employment tribunals due to unfair selection and discrimination within businesses, whether intentional or not.

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What counts as discrimination in the workplace?

Under the Equality Act 2010, it is unlawful to discriminate against anyone with any of the following protected characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

How can employers ensure their redundancy process is fair?

Many employers will be panicking about the decisions they face, but with panic comes rushed decisions and errors in judgement. Employers must ensure that they have non-discriminatory policies in place for redundancy, flexible working, working from home, recruitment and for those returning to the workplace.

With any adjustment to an employee’s working hours or arrangement, it is an employer’s responsibility to be transparent about both parties’ rights and procedures, and to offer reasonable adjustments to be made, where necessary.

For example, it could be discrimination if the reason you make an employee redundant is because they are older or pregnant, and you need to ensure the workplace accounts for such needs. It is your duty as an employer to try to find a way to let that employee work safely first, i.e. by making reasonable adjustments, before considering other options.

You should also be careful of indirect discrimination. For example, selecting female employees for redundancy due to the fact that they have worked less hours as a result of their childcare responsibilities.

What reasonable adjustments should an employer make?

You may presume that reasonable adjustments only apply to physical changes in a workplace, however, it’s much broader. Reasonable adjustments can include finding alternative roles on a temporary basis for employees whose roles have become redundant, or agreeing a salary reduction or deferral if furlough is not available.

Disabled employees may have experienced deterioration in their condition during and since the pandemic, whilst others may have developed new disabilities which have an impact on their working life.

How can an employer ensure it supports their employees upon returning to work?

As an employer, you should never make assumptions. Even the most confident, strong and senior employee may be struggling with the concept of returning to work, be that from home or in the office. It’s vital that you keep lines of communication open and have clear, practical policies available for employees to consult.

Line managers should communicate regularly with employees in order to know their concerns. There is no one-size-fits-all approach to employee well-being; home workers and office workers will have different needs and some employees’ needs will be more complex and urgent than others.

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Further information

As with any important business or employment decision, seeking expert legal advice early on can save an employer a lot of time, money and stress. If you’re an employer who is having to contemplate redundancy, or you’re unsure of where you and your employees stand once the furlough scheme comes to an end, our employment law solicitors can help.

Call us on 0117 325 2929 or fill out our online enquiry form to speak to a member of our employment law team.