Employers beware: potential litigation ahead

Did you know that if one of your employees is, for example, wrongly accused of being gay and teased as a result, that your business could be heading straight for an Employment Tribunal?

If the answer’s no, then it’s about time you got up to speed on the very latest piece of employment legislation to come into force – the Employment Equality (Religion and Belief and Sexual Orientation) Regulations. As of December 1 2003, these new rules will protect all employees from being discriminated against because of their religious beliefs or their personal sex life.

Interpretation of these is much more complex than earlier discrimination legislation, as in the case of the example given above where mistaken assumption could land you in trouble. It’s therefore absolutely vital you know where you stand in what could be a minefield of litigation.

So what do you need to know? There are three different ways in which an employer can discriminate against the people that work for them and their staff.

The first, direct discrimination, is where an individual is prejudiced against on grounds of sexual preference or religion. The second, victimisation, is also self-explanatory. It’s where an employee feels picked upon because they have made a grievance or raised a complaint to the Employment Tribunal.

The third, indirect discrimination, is much less straightforward. An example of this might be of an employee who works for a news agency and requests Friday afternoons off in order to go to the Mosque. This is refused because the company is small and the business is concerned the employee will be absent at the time of the week when it needs analysis of the news the most.

If the employer can demonstrate the firm genuinely needs the member of staff to work at that particular time on a Friday afternoon, because of their client needs or the difficulty of replacing the individual, then they can justify refusing the request. However, if it’s found the company could have worked around the absence of the employee, but chose not to, then the refusal is a case of indirect discrimination.

Employment Tribunals will have to conduct a balancing exercise between the needs of the employee and the reasonable requirements of an employer, to see whether the member of staff had been treated fairly and without discrimination.

So how do you prepare your business? The easiest way is to draw your employees’ attention to your equal opportunity policy (get one now if you haven’t already). This should act as a fixed statement of your firm’s aims and objectives to treat all of its employees fairly and without bias. It doesn’t matter how you tell them – verbally, via email or by a notice in staff communal areas – just make sure they know what they can and cannot do.

You may find you need to provide some sort of staff training so they aren’t prejudiced when providing a service to clients, and so they are aware that they can be personally liable as individuals if they unwittingly discriminate against their co-workers. Lastly, your staff need to be able to communicate and to tell managers if they feel aggrieved on the grounds of their sexuality or religion.

It may sound like more hassle, but so too is an Employment Tribunal so get your act together now.

Joy Hankins specialises in employment law for Laytons www.laytons.com