A Small Business Guide on How to Avoid Discrimination
With potentially unlimited liability, discrimination law is one area you need to be careful around as a business owner – find out how to navigate the law
As a business owner, if you could choose one legal pitfall to avoid, it should be discrimination. Unlike unfair dismissal and other employment-related awards, losing a discrimination claim in a tribunal will lead to potentially unlimited damages – so it is essential to get the law right.
Unfortunately, keeping in line with the law isn’t quite as simple as just avoiding overt discrimination, such as being racist or sexist against an employee. You can be unintentionally discriminatory too, so you need to know how this can occur and how to avoid it.
This article provides the basics of what you need to know to stay in line with the law; covering what discrimination is, what ‘protected characteristics’ are, how to avoid unintentional discrimination, and what to do if trouble occurs and someone brings a claim against you.
What is illegal discrimination?
Essentially, the law considers discrimination to occur when you treat someone less favourably because of a ‘protected characteristic’ they have. A ‘protected characteristic’ is one of the following:
- Age: A recent change in the law means there is no longer a ‘default retirement age’, so you can’t let someone go because they are too old anymore – unless it can be objectively justified (for example, if their age means they can’t operate heavy machinery necessary for the job anymore). If you wish to let an older employee go, you have to go through the standard dismissal process.
- Sex: This includes gender reassignment.
- Marital status: Covering marriage and same-sex couples in civil partnerships or marriage.
- Pregnancy and maternity: Perhaps the most legally problematic characteristic for many employers, you are forbidden from dismissing someone because they have gone on maternity leave – even multiple times. This covers paternity leave as well.
- Race: Covering colour, nationality, national or ethnic origins.
- Sexual orientation: Fairly self-explanatory; you cannot discriminate against someone because of who they are attracted to.
- Religion or belief: This includes lack of any belief, and political beliefs. Interestingly, there is an exception to this covering allegiance to football teams!
- Membership of a trade union: This covers non-membership as well.
- Disability: This is defined as a physical or mental impairment which has a substantial and long-term effect on an employee’s ability to carry out day-to-day activities, so it can cover certain diseases and conditions as well. Disability law also imposes a positive requirement on employers to consider whether they can make any ‘reasonable adjustments’ to accommodate disabilities in the workplace, such as ramps for wheelchair users.
It is important to note that the Equality Act 2010 (which governs the majority of discrimination law) also outlaws ‘positive discrimination’ in which members of a disadvantaged group are treated more favourably.
The only exception to this is known as a ‘tie-break’ scenario when recruiting; if you have two employees with absolutely equal qualifications and competence for the job, you are allowed to select a candidate on the basis that their protected characteristic is under-represented in the workplace. Tread carefully here though. It will be rare that you have two equally qualified candidates for anything, and you are exposing yourself to risk of a claim.
If someone brings a discrimination claim against you, or has indicated they might, this is known as a ‘protected act’, and it is also illegal to discriminate against them on this basis.