In August 2015 Acas published three new guides designed to help employers understand equality and discrimination law, how to prevent discrimination and how to address where it occurs. This general guidance on equality legislation and best practice is designed to supplement existing Acas guidance on individual protected characteristics.
Guide 1: Equality and discrimination: understand the basics:
This guide provides an introduction to the legal requirements and best practice behaviours that employers and employees need to adhere to in order to comply with equality legislation. This guide will be particularly useful for someone grappling with equality and discrimination for the first time. It would also be a useful reference document for line managers. We comment on some of the notable aspects of the guidance below.
The nine protected characteristics:
The guide provides an overview of the meaning of the nine characteristics protected under the Equality Act 2010 (the Act).
The guide recognises that the position on whether caste discrimination is prohibited under the Act is unclear. It notes that whilst it is possible that the Act may be amended in future, some consider caste is already covered by the definition of "ethnic origin". The guide does not offer a view either way on whether caste discrimination is already covered by the Act.
Types of discrimination:
The guide offers a brief overview of the four main types of discrimination: direct, indirect, harassment and victimisation. A helpful "at-a-glance" chart explains what types of discrimination are prohibited for each of the protected characteristics.
However, the guide is arguably out of date in respect of the guidance on indirect discrimination. In the recent case of CHEZ Razpredelenie Bulgaria C-83/14 (see this month's Uptodate briefing for our full report on this decision), the ECJ decided that the protection from indirect discrimination also covers associative indirect discrimination. Whilst the Acas guide recognises the concept of associative direct discrimination, there is no discussion of how this applies in respect of indirect discrimination.
The guide also notes that whilst protection from third-party harassment was repealed in October 2013, employees may still be protected against this form of harassment if an employer fails to take reasonable steps to prevent it under the broader provisions of the Act. Accordingly, employers should make it clear to third parties that they will not tolerate harassment of their staff.
Exemptions and exceptions:
The guide runs through the various exemptions and exceptions under the Act, which may mean that discriminatory treatment is not unlawful. These are:
- Matching the core "occupational requirements" of a job.
- Objective justification.
- Taking "positive action" in the workforce.
- Taking "positive action" in hiring and promoting staff.
Guide 2: Prevent discrimination: support equality:
This guide outlines how employers can promote and benefit from the principles of equality and diversity and how they can put them into practice in the workplace. Emphasis is placed on having appropriate policies in place, training staff and conducting ongoing monitoring.
Understanding where discrimination can arise:
The guide offers guidance on the areas where discrimination can typically arise, such as advertising jobs and recruitment. Interestingly, the guide cautions employers against viewing candidates' social media profiles on the basis that this might reveal things that an employer would not ask them about in a recruitment process and lead to discriminatory judgments.
A number of other tricky areas are covered such as: pay and benefits; equal pay; religious practice; dress codes; and flexible working.
Taking measures to stop discrimination happening:
The guide recommends three key measures for employers to help them prevent discrimination at work:
- Introduce an equality policy: the guide sets out recommendations on what should be included in the policy e.g. a statement of the organisation's commitment to equality, and confirmation that breaches of the policy will be treated as misconduct.
- Use an action plan to support the policy: an action plan should developed and dates assigned to key phases namely: (i) monitoring the impact of the policy; (ii) reviewing any relevant procedures; (iii) training employees to understand the policy and action plan; and (iv) additional steps for larger organisations e.g. conducting an equal pay audit.
- Train staff: an employer's equality and diversity training should be regularly updated and "supported from the top" of the business. The training should cover the law on discrimination and how it is put into practice within the business. Ideally, staff should be provided with written "take away" summaries of the training and they should be given the opportunity to ask questions. Further, the guide recommends that the training be conducted by a senior manager, HR profession or an external trainer who fully understands equality, diversity and discrimination. It also highlights that additional training may be needed for specialist roles (e.g. those involved in recruitment and promotion decisions).
Monitoring if and how the measures are working:
A detailed five-step guide to monitoring whether the organisation is meeting the goals set out in its equality policy is included. The five stages are:
- Stage 1: persuade employees and job applicants of the benefits of completing an equality monitoring form or staff attitude survey.
- Stage 2: collect personal data.
- Stage 3: collate and analyse the data.
- Stage 4: get to the root cause of any significant findings.
- Stage 5: decide on any changes.
Further, some good practice recommendations are offered on monitoring particular protected characteristics.
Guide 3: Discrimination: what to do if it happens:
This guide covers the basics of dealing with discrimination, including how to investigate complaints of discrimination.
Raising and receiving complaints about discrimination:
The guide reminds us that complaints about discrimination may arise in many ways and will not always take the form of a written complaint. However, where a formal grievance is raised, the guide reminds employers of the issues they need to give special consideration to, such as complying with the Acas Code of Practice. There is also discussion of the temporary measures available to employers whilst dealing with a grievance e.g. suspension of the alleged perpetrator or redeployment of the complainant or perpetrator.
Investigating the matter:
A brief overview is given of the steps that an employer must take when investigating a discrimination complaint, including: (i) appointing an investigator; (ii) collecting evidence; (iii) holding an investigatory or fact-finding meeting with the complainant; and (iv) collating the evidence. The guide recognises that in small businesses, the investigator and the decision-maker may be the same person and, where this is the case, the person must handle the matter reasonably, fairly and objectively.
The guide also covers a number of other important areas, namely:
- deciding how to handle the matter;
- taking action ; and
- avoiding further allegations of discrimination.
You can find copies of the three Acas guides here.