In the latest Coffee Break Briefing, Chris Dobbs and Jack Phillips explore unlawful conduct under the Equality Act 2010, including direct and indirect discrimination, disability-specific claims, sexual harassment and third-party harassment.
They also discuss upcoming changes to redundancy protections for employees who are pregnant, on maternity leave or taking other forms of family-friendly leave.
If you missed this webinar, you can watch the recording below.
What is direct discrimination?
Under Section 13 of the Equality Act 2010, direct discrimination occurs when a person (A) treats another person (B) less favourably than they treat, or would treat, others because of a protected characteristic.
Importantly, the individual does not necessarily need to possess the protected characteristic themselves to experience direct discrimination. It can also apply where someone is treated less favourably because they are perceived to have a particular characteristic or are associated with someone who does.
The Equality Act 2010 protects nine characteristics from discrimination:
- Age
- Disability
- Gender reassignment
- Marriage or civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
Examples of direct discrimination and how to reduce the risk?
Examples include:
- Not recruiting someone because they are considered 'too old'
- Overlooking an employee for promotion because she is pregnant
- Refusing someone a training opportunity because of their religion
Employers can take several steps to reduce the risk, including:
- Using clear and objective selection criteria
- Applying processes consistently
- Documenting the reasons behind decisions
- Training managers on equality and diversity issues
- Challenging assumptions and unconscious bias
What is indirect discrimination?
Under Section 19 of the Equality Act 2010, indirect discrimination occurs when a person (A) applies a provision, criterion or practice (PCP) to another person (B), which puts people sharing a relevant protected characteristic at a particular disadvantage.
What is a provision, criterion or practice (PCP)?
A PCP is essentially a rule, requirement, policy, expectation or way of working within a business.
Employers must consider whether a particular PCP places individuals with a protected characteristic at a disadvantage compared with others.
What could indirect discrimination look like in practice?
For example, an employer may introduce fixed start and finish times and refuse to make any exceptions.
The PCP in this situation would be the fixed working hours. This could disadvantage employees with certain disabilities or childcare responsibilities, potentially making it difficult for them to work those hours or even preventing them from taking up the role in the first place.
Can indirect discrimination ever be justified?
An employer may be able to justify a PCP if it can demonstrate that it is a proportionate way of achieving a legitimate business aim.
For example, an employer may argue that fixed working hours are necessary to meet business needs. However, they would need to consider whether refusing all requests for flexible working is reasonable and proportionate in the circumstances.
Employers should consider whether there are alternative ways to meet their business needs without placing certain employees at a disadvantage.
How can employers reduce the risk of indirect discrimination?
Before introducing a new PCP, employers should consider:
- Who might be affected by the requirement?
- Could any protected groups be disadvantaged?
- Why is the requirement or rule necessary?
- Is there a less discriminatory alternative?
What is discrimination arising from a disability?
Under Section 15 of the Equality Act 2010, an employer discriminates against a disabled person if they treat them unfavourably because of something arising in consequence of their disability and cannot show that the treatment is a proportionate means of achieving a legitimate aim.
What are the potential risks for employers?
Employers need to be particularly mindful of situations where workplace policies or procedures could disadvantage disabled employees.
Examples include:
- Rigid sickness absence procedures or trigger points that do not account for disability-related absence
- Failing to consider the needs of neurodivergent employees
- Application and interview processes that are difficult for people with disabilities to access
For example, if a disabled applicant struggles to access or complete an employer's application process, this could potentially give rise to a disability discrimination claim.
What happens when an employer fails to make reasonable adjustments?
Section 20 of the Equality Act 2010 places three main duties on employers:
- To take reasonable steps to avoid a substantial disadvantage caused by a workplace provision, criterion or practice
- To take reasonable steps to avoid a substantial disadvantage caused by a physical feature of the workplace
- To provide auxiliary aids where reasonable to help a disabled person overcome a disadvantage
What might be considered a reasonable adjustment?
Depending on the circumstances, reasonable adjustments could include:
- Making changes to the workplace
- Adjusting working arrangements
- Providing suitable equipment or additional support mechanisms
The purpose of an adjustment is to remove or reduce the disadvantage experienced by the individual.
When deciding what is reasonable, employers should consider factors such as practicality, affordability and whether the adjustment would create a health and safety risk for others.
What is harassment under the Equality Act 2010?
Under Section 26 of the Equality Act 2010, harassment occurs when someone engages in unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of:
- Violating another person's dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
What is sexual harassment?
Sexual harassment is also covered under Section 26 of the Equality Act 2010.
It involves unwanted conduct of a sexual nature which has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Why are employers at risk of sexual harassment claims?
One of the key issues discussed during the briefing was how problematic workplace behaviour can develop gradually.
Comments that initially appear harmless can become normalised, 'banter' can go unchallenged, and employees may stop reporting concerns because they do not believe anything will be done.
This can create a workplace culture where inappropriate behaviour is allowed to continue.
What is the new duty on employers to prevent sexual harassment?
Employers are now required to take all reasonable steps to prevent sexual harassment in the workplace.
This is a higher standard than simply having preventative measures in place. The focus is on actively identifying risks and ensuring that every reasonable measure has been considered and implemented.
EHRC guidance highlights the importance of:
- Identifying potential risks
- Considering what steps could reduce those risks
- Implementing all steps that are reasonable
The key question employers should be asking themselves is: Was there anything else that could reasonably have been done?
Passive compliance is no longer enough. Employers need to demonstrate active prevention.
How can employers demonstrate that they are taking all reasonable steps?
The actions taken by an employer before a complaint is raised can make a significant difference.
For example, consider two employers who experience identical sexual harassment complaints.
One employer has an outdated policy, training that was last delivered three years ago and no documented risk assessment.
The other has refreshed training, completed risk assessments, updated its policies and reporting procedures, and reviewed previous complaints.
Although the allegations are identical, the second employer is likely to be in a much stronger position to demonstrate that it has taken preventative measures.
Why are workplace risk assessments important?
Regular risk assessments are an important part of preventing sexual harassment.
To establish areas of high risk, employers should consider questions such as:
- Do employees work in isolation?
- Is alcohol regularly present at work events?
- Are there any areas where previous complaints or concerns have been raised?
- Are there any parts of the business where the workplace culture could increase the risk of harassment?
What should employers be doing to meet their responsibilities?
Employers should focus on:
- Having a clear and up-to-date policy
- Providing regular training
- Ensuring reporting procedures are easy to follow
- Monitoring complaints and identifying patterns
- Keeping records of training and preventative measures
What happens if employers fail to meet the required standard?
Failing to take appropriate preventative steps can expose employers to several risks, including:
- Employment Tribunal claims
- Uncapped compensation awards
- Increased compensation where the preventative duty has been breached
- Reputational damage
- Employee relations and retention issues
Employers should regularly ask themselves:
- Have we identified where the risks lie within the business?
- Have we carried out and documented a risk assessment?
- Are our policies, training and reporting procedures up to date?
- If a complaint was raised, would everyone know what to do?
- Could we evidence the steps we have taken if asked to do so by an Employment Tribunal?
What is third-party harassment?
Third-party harassment relates to harassment committed by someone who is not an employee, against a member of staff, in the course of or in connection with their employment.
Importantly, while much of the recent focus has been on sexual harassment, the protections discussed during the briefing apply across all protected characteristics, not just sexual harassment.
Employers should therefore be mindful of inappropriate behaviour from individuals such as clients, customers, suppliers and other external contacts.
What are the upcoming changes to pregnancy, maternity and family leave protections?
The briefing also covered recent consultation responses on expanding redundancy protections for employees who are pregnant, on maternity leave or taking other forms of statutory family leave.
From October 2027, the proposed changes will extend protections around dismissals during these protected periods.
The changes mean that employers can expect much closer scrutiny when dismissing an employee who is pregnant, on maternity leave, taking another form of statutory family leave, or has recently returned from such leave.
Rather than relying on the standard unfair dismissal test of whether a dismissal was reasonable in the circumstances, employers are expected to face an Equality Act-style justification requirement.
This means employers will need to demonstrate why the dismissal was necessary and whether it can be objectively justified, potentially including where an individual is selected for redundancy during a protected period.
These changes will place greater responsibility on employers to ensure that redundancy decisions involving employees taking protected leave are carefully considered and properly justified.
Employment law experts
If you have any questions regarding this webinar, you can get in touch with a member of the team on 01202 499255 or by filling in the form at the top of the page. We offer all new clients a free initial chat.
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The next Coffee Break Briefing will take place on Wednesday 2 December, where Employment Solicitors Jack Phillips and Justine Mears will explore the new Unfair Dismissal Regime and Fire/Rehire.
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