On International Women’s Day 2018, Ingrid de Quiroz McGhee, Partner at tax advisory firm Leyton Legal‘s Glasgow office, discusses workplace discrimination and the need for change when it comes to gender equality
We’ve all seen the headlines. Whether it be the resignation of senior BBC staff or accusations of discrimination at Google – these are reminders that workplace discrimination is a prevalent issue.
The recent resignation of Carrie Gracie, the BBC’s China editor, over what she says is “unlawful pay discrimination” and the accusations that Google discriminates against “conservative white men” are timely reminders that workplace discrimination is an ongoing issue.
A new report on gender discrimination from the Chartered Management Institute has revealed that 85% of women and 80 per cent of men have witnessed gender-discriminatory acts at work, leading legal professionals to ask if organisations are struggling to achieve a gender balanced workplace and if so, why?
The effect of workplace discrimination
Not only is discrimination within the workplace unlawful, it can impact on the health, wellbeing and general morale of employees. Ultimately, it can lead to employment tribunal claims being brought against employers, with such claims often attracting adverse publicity and reputational risk.
Employers can be held vicariously liable for the actions of employees who discriminate against others. Vicarious liability is where the employer is deemed to have discriminated against an individual even where the discrimination was carried out by a rogue employee without the knowledge of the employer. Employers may be able to defend such a claim if they can demonstrate that they have taken all reasonable steps to prevent the discrimination taking place. In the absence of such steps having been taken (e.g. equality and diversity training), it will be harder for employers to separate themselves from a discriminatory act of an employee.
How to avoid workplace discrimination
There are a number of important steps which employers can take to help prevent workplace discrimination from occurring in the first place. These may also provide a potential defence to a vicarious liability claim.
Leyton Legal recommends that employers:
- ensure that an equal opportunities policy is in place and that it has been brought to all employees’ (and any agency staff/contractors etc.) attention. All members of staff should be required to sign and confirm that they have read and understood the policy. The policy should be reviewed on a regular basis and revised as appropriate.
- provide equality and diversity training to all staff to ensure awareness, to promote a culture of respect within the workplace and to encourage staff to report any instances of discrimination. Additional training should be provided for managers on monitoring and enforcing the equal opportunities policy. Refresher training should also be provided to all staff on a periodic basis and when any significant changes to the policy are made.
- ensure that the equal opportunities policy is properly enforced and that any allegations of discrimination are fully investigated and handled under the employer’s disciplinary procedure, where appropriate.
- ensure policies and working practices do not indirectly discriminate against a particular sex. For example, requiring employees to work full-time could indirectly discriminate against women who tend to have greater childcare responsibilities than men and are therefore more likely to seek to work part-time. Whilst indirect discrimination can be justified in certain circumstances, it is recommended that employers take legal advice if they are looking to justify indirect discrimination.
- ensure that employees are not victimised for raising complaints of discrimination. Allegations of victimisation should be taken seriously, and disciplinary action should be considered against the alleged perpetrators where there is supporting evidence.
Remove the gender pay gap
With Tesco now facing a potential £4 billion equal pay claim, it is clear that equal pay remains an ongoing concern and risk for many. Employers should consider carrying out an equal pay audit to identify any discriminatory pay structures and to take appropriate steps to remove any pay disparity across the genders. Equal pay is a complex area, but its basic principle is that staff should receive equal pay for:
- work of equal value
- work rated as equivalent; and
- like work, regardless of gender.
Discrimination is a complex area, and should any issues arise, we recommend that employers always seek specialist legal advice.