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

A Small Business Guide on How to Avoid Discrimination

The law considers it irrelevant whether or not you have evil intent when discriminating against someone – it is the effect of the treatment on the other person that matters. This means you can discriminate against someone without realising it.

Broadly, there are four kinds of discrimination outlawed in the workplace:

  • Direct discrimination: This is where you treat someone less favourably directly because of a protected characteristic they have. Direct discrimination can occur in situations where you treat someone less favourably because of the effect of their protected characteristic – for example, sacking a pregnant employee because she is off work and costing you money, or a disabled employee for needing expensive special equipment in the workplace. If an employee produces evidence that you discriminated against them, the burden of proof shifts to you to disprove it.
  • Discrimination by perception or association: It is also illegal to discriminate against someone if you think they have a protected characteristic but in fact they don’t, or they associate themselves with a protected group. An example would be sacking someone because you think they are gay, or they are an advocate for gay rights.
  • Indirect discrimination: This is a little more complex. Indirect discrimination happens when you impose a ‘provision, criterion or practice’ in the workplace which may appear equal on the face of it, but in fact disadvantages one group more than others. Unless it is a genuine requirement of the job, you open yourself up to a claim. An example might be only employing construction workers who can speak fluent English.
  • Victimisation: This is where you discriminate against someone for making a ‘protected act’ to do with making a claim against you under the Equality Act. An example might be passing someone over for a promotion because they made a claim of sex discrimination against you in the past.

 

How do I ensure I treat people equally?

To avoid unintentional discrimination, you need to monitor yours and others’ actions in all aspects of the workplace, but especially in some key danger areas:

  • Recruitment
  • Dismissal
  • Redundancy
  • Promotion and training selection

 

To avoid discrimination in these areas, consider the following:

  • Create objective criteria for selection: This applies to all the danger areas outlined above. Focus solely on the requirements of the job, and be blind to personal characteristics.
  • Be aware of bias: You might not even realise you have prejudices, so it is a good idea to involve other people in any selection process for an objective view and use a range of sources when assessing a person’s performance.
  • Maintain proper records: If someone makes a discrimination claim against you, it is much easier to defend against if you can produce records that show why you chose one person over another.
  • Carry out an equal pay audit: This can assess whether any illegal pay gaps exist in your workplace so you can take steps to address them.
  • Make sure all dismissals are conducted legally: Always important but especially so in the context of discrimination law; remember that damages are unlimited in this area.
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