Each week, Peninsula Business Services invite business owners, finance directors and senior management to take advantage of our national program of FREE Employment Law and Health & Safety Webinars.
In this week’s Webinar, I will discuss how to avoid discrimination during an interview, how to train your management so they avoid discrimination situations, how to deal with claims of discrimination by your employees and how to win at employment tribunal should you be accused of discriminating. This webinar is essential for those seeking a workplace free of discrimination.
Good morning, everybody. Hello. Welcome to my webinar today. It’s Amanda Chadwick, Senior Speaker at Peninsula Services, Ltd. It’s the 19th of December. It’s Thursday. This is the last webinar that I’m broadcasting, actually, until the new year, so this is just a webinar on discrimination in the workplace and how do avoid it with best practices, really.So thank you very much for listening to me today. Just before the festive season, it is a busy time, so I do appreciate it. I’m full of a cold, so I hope you appreciate that I’m broadcasting full of a cold as well. So if I start coughing and spluttering, then, you know, I do apologise. But also, as well, I think webinars, less chance of contamination, anyway, isn’t there? Because you’re listening to me, rather than face-to-face.So what is discrimination? Well, we’re talking about harassment today, bullying and discrimination. It’s unlawful to discriminate anyone on the grounds of age, disability, gender reassignment, marital status and civil partnership, pregnancy, maternity, race, religion, or belief, sex or sexual orientation.
You are responsible, so that’s the manager, that’s the HR. Ultimately, the owner of the business has vicarious liability. They’re the ones that will pay out. But I’m sure if you’re the manager or with the HR, you know, they always say to you, “Where did it go wrong? What did you not do?” So you have to remember, you are responsible – vicarious liability – for discrimination carried out by your employees, unless you can show you’ve done everything you reasonably could to prevent or stop it.
So, discrimination does not have to be deliberate or intentional. It can be an accident. It can be just somebody that says things by the way they’ve been brought up. They don’t really mean it; they just think that it’s acceptable. You can discriminate indirectly with working conditions or rules that disadvantage one group of working people more than another.
Associated discrimination. Who has protected characteristics. Example, family member or friend. So associated discrimination would be somebody for example, I’ve got a family member who’s a traveller. I’ve got a sister who’s married to a man from Thailand. They’re Buddhist. I’ve got another sister married to a man whose family are from Sierra Leone, and they’re strict Catholics. So it’s association of discrimination. So being known and discriminating against somebody. An associated discrimination. So it might be you saying things, etc.
Employees are also protected if they have complained about discrimination or supported someone’s claim. So how can an employee be discriminated against? Well, direct discrimination. Treating an employee with a protected characteristic less favourably than others. So that’s direct discrimination. And, you know, when we talk about tribunal, and people take it, and, you know, you get claims at tribunal. Somebody says, you know, “I was discriminated against. They dismissed me because of my religion.” You know, when they make that claim, what they’re looking for, the laypersons and chairpersons, is the fact that at that proper, at the date of discrimination, at the time of dismissal, you know, was there discrimination shown?
So, you know, direct discrimination. It’s like somebody writing it down. People do now, because of the two-year claim per dismissal, write down discrimination. And remember, with employment law, employees can say what they want about you, and you have to defend yourself against those claims. So just remember that. And this is something that people can do right from the very beginning, from adverts, from something in the press. You know, applying for a job. Right from the word go, somebody can claim discrimination. So direct discrimination is treating an employee with a protected characteristic less favourably than others.
We’ve got indirect discrimination. Putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair advantage. And then harassment. Unwanted behaviour linked to a protected characteristic violates someone’s dignity or creating an offensive environment for them. And times have hugely changed over the years when it comes to discrimination and harassment. And, you know, even from when I first started work, what was acceptable was completely to be harassed all the time, as a young woman.
And it’s not just women that get harassed. It’s men as well. So it’s a man, a young man starting work in a place where there’s older women that, you know, grab hold of him, give him a cuddle. You know, turn that around, and a man doing it to a young woman, it wouldn’t be laughed at. It wouldn’t be classed as a harassment. It should be a criminal prosecution. The tables would turn if it was a man.
So we’re gradually getting there with equality. And, you know, still some people don’t see a sexual harassment from a woman as bad as it is from a man. But it is. It’s exactly the same, because it’s the person that’s having harassment. It’s how they feel. It’s unwanted behaviour.
So… and also, when I first started, years and years ago — you’ve heard me talk about this — working in a factory environment when I was at college to earn extra money. And there was a caravan in the middle of the factory environment. I was the only girl working there. I was 15 at the time. And there was plasters, pictures of, you know, pornographic magazines all around the caravan that, you know, that was acceptable then, because everybody did it. You know, you just sort of turned a blind eye. It didn’t happen. And in fact, I remember talking about this about 15 years ago, saying, “You have to take the calendars down in garages and warehouses with pornographic pictures on it.” And I remember sitting, you know, educating people about it, and then having people say, “I can’t believe you’re asking me to take that calendar down.” You know, and I’m thinking, “Well, it’s creating an offensive environment for some people.”
So it’s having that reporting procedure in place to protect you if somebody’s unhappy about something that’s happened in work, or something that somebody’s saying. It’s about protecting your business. That’s what we’re all about. About protecting the employer, the manager, HR, the owner of the business from elements of direct discrimination, indirect discrimination, harassment, and victimization, reports of it to help them prevent it, and educate them, and educate their staff not for it to happen.
So victimisation is treating someone unfairly because they’ve complained about discrimination or harassment. And know it can be lawful to have specific rules in place, as long as they can be justified. So if I was advertising a job for a female worker or male worker, I could maybe justify that, because I’m working in the care sector and the job is an intimate role, and that’s why I require a man or … a male or female worker.
So the time period for a claim of discrimination — you have to remember this — is none, or three months from the date of the incident. And remember, I can take this to tribunal just from the advert alone. So let’s pull one out of a bag here. Let me give you an example. A telephone answering service. A man applies for the job. He doesn’t even get an interview, but he sees the job advertised a few weeks later and thinks, “That’s odd.” So he reapplies again, but this time on his CV, he uses a female name. This time he gets an interview. Sexual discrimination case. So remember, from the advert alone, I can take you to tribunal. So get the advert right.
If you’re going to discriminate, do it positively. And if you, you know, make sure you can objectively justify. But at the end of the day, it’s very far and few cases where you can actually discriminate during advert. You’d be well within your rights, though, to say in an advert, “Working at heights wouldn’t suit a vertigo sufferer.” You’d well be within your rights to say, “This factory environment involves working with nuts and cereals, so would not suit an allergy sufferer.” So you’re well within your rights to say thing like that. I think when you advertise jobs now, you have to put as much information as possible into the advert, so that people understand what the job’s about, and also so you don’t get a discrimination case.
Also, my top tip here would be to use the right documents at the very earliest stage. And one of the most amazing documents to use at this stage of advertising to prevent discrimination claims and tribunal claims is an application form, as opposed to a CV. Because CVs aren’t a legal document, but application forms are, only if they say it. So if somebody lies on a CV, it’s actually not fraud and deception. But somebody lying on a legal document, it is actually fraud and deception. So remember that. And the maximum award for discrimination claims, well, it’s unlimited. This is why it is scary. This is why you have to get it right. This is why you have to advertise properly and know what you’re talking about.
So discrimination. We’ve got racial discrimination. So skin color. But don’t forget, it’s not just skin colour here. It’s also accent.
So years and years ago, I was doing some training for a firm over in Warrington, and they mentioned that they didn’t employ Scouse workers, because when they answered the phone, they felt it was awful. But, you know, that’s discrimination. I was absolutely horrified. And I did say to them, there are lots of people now, when they ring locally, will expect a local accent. So do not discriminate in any way. You’d be surprised the general public’s response. They don’t mind accents. If they’re ringing regionally, they will not mind an accent. And you shouldn’t be discriminating based on somebody’s accent anyway. And then we’ve got religion. We’ve got religious belief and no belief. And there’s 85 recognised religions in the UK. And I could bang on for three hours about religion here today. And, you know, if you’ve got the time, sit down, write down the 85 religions. I’ve never got to 85, by the way. But 85 recognised religions in the UK.
And my advice to anybody is try and be as bland as possible. If you start recognising a religion, you’re going to have to recognise all the other ones, and you can have an absolute nightmare. So for me, I would just be bland and not recognise any religions. And be careful here when it comes to Christmas, where we are now. If you have in your handbook that you allow people to take time off for Christmas, make sure you say that it’s a quiet period. That’s the reason why. And if you have a religious worker working for you, like a Buddhist worker, and they go back to Thailand for four weeks for Sabbatical every year in April/May, then make sure that you don’t recognise it as a religious holiday, that you recognise it just as an annual holiday, not as a religious holiday, and that it may change from year to year. Because if you start recognising one religion, as I said to you, you’re going to have to recognise everybody, because otherwise that is discrimination. So be very careful of that.
Religion, as well. You know, we’ve got people ripping down Christmas decorations in offices now, for fear of scaring people. It’s just ridiculous, because you can buy Christmas decorations that are not in any way, any form religious. They’ve got just, like, holly, or they’ve got pine cones on there. And if we go back to time anyway, it’s a pagan religion. So at the end of the day, to put Christmas decorations up without any Biblical thought to them, make sure they’re bland, and just recognise Christmas as a celebration within the workplace. That is perfectly acceptable.
In fact, I work with lots of religious organisations. Churches. And in fact, one of the organisations I was working with a few years ago was a Muslim organisation up in Blackburn. And they were putting Christmas trees and decorations up, because they said they celebrate Christmas as a celebration, not as a religious festival, like many other different religions within, throughout the UK. So just to remember that, but just be careful that you, when it comes to Christmas parties, etc., and celebrations, that you’re not forcing people to go to celebrations because of their religion, and maybe even their relationship, or because they’ve got children forcing them that they have to go. So be very careful of this and discrimination. And then we’ve got political opinion and affiliation. This is where Facebook, social networking sites play a huge part, as well. People put their opinion on site and forget that fellow clients and fellow workers can see what their opinions are.
What you should be saying is you should have a good Facebook/social networking policy. Not just Facebook, because that’s the big thing at the minute. We’ve got Instagram, we’ve got Tumblr, we’ve got Twitter, we’ve got LinkedIn. You need to retain more control over this now, without breaching somebody’s human rights, and having policies in place that say you can mention that you work in legal trade, but you can’t actually mention which firm you work for. So when they do have their own political opinion, or they have their own religious opinion, or they add their own opinions about anything, or actually have a very colourful sex life, then, you know, they can’t associate it with your company.
You might want to say, as well, that any employees of yours may not have any of your clients or anybody you do business with as their friends on any social networking site. It’s perfectly acceptable to say that without breaching somebody’s human rights. So that’s, you know, how discrimination can happen with a social networking policy. And this is a policy I’m constantly updating at the moment. It’s one of the most updated policies. You get one in and it changes straight away. Make sure… or if it’s not quite right for you, and you need to change it again, that you do actually have, in your handbook, a good social networking policy. If you let people have LinkedIn, you might want someone to monitor it through your workplace and have your control over it, so you know what’s said on there and what’s announced. Again, with Facebook.
And let’s not beat around the bush here. Internet, social networking, Facebook, LinkedIn, Tumblr, Instagram, all those things are the way forward for businesses. We all Sky+ now. We always fast-forward when it comes to adverts. People advertise on their social networking sites. And they work. So the way forward is the internet. It’s end of. It is. But we have to make sure that we are savvy about it as the employer, as HR, as managers, as directors, to make sure that we’ve covered everything off.
So, political opinion/affiliation. And then we’ve got marital status, including civil partnership. And discriminating against somebody… I remember years ago in the… you know, in the banking trade, you couldn’t actually be married, let on or be married, until you’re 25, because they felt you’d have too many responsibilities, and may steal from their branches. I think you’re more likely to steal, aren’t you, when you’re single? So, you know, again, discrimination. You can’t do that now. Sex and sexual orientation, as well. Disability. So there’s cancer, there’s HIV, there’s stress, depression, arthritis, dwarfism, dyslexia. The list is endless. And some disabilities you can’t see, and some you can. And what have you got in place to protect your business there?
Well, I recommend a statement for maternity and pregnancy and disability that says, first of all, you use a health questionnaire not at the beginning, not when you actually offer them the… sorry, not at the interview stage or when they’re applying for the job. But you use a health questionnaire when you’ve offered them the job. Remember that, because that’s illegal otherwise.
Then, when you’ve used the health questionnaire, you then do an induction, you get them to sign in the handbook. And in the handbook, it says that if you have a disability, you take a medication, you have a medical condition, or you’re pregnant, you have to let us know at the earliest stage possible, written, so we can make the health and safety standards necessary for you to do your job.
I’ve just given you an amazing paragraph there that you can use to protect your business. And what happens, you see, is if somebody is pregnant and you’re going through a dismissal with them, you have … they should have told you, and they can’t then turn around and say you dismissed them because they’re pregnant. Because you can defend yourself and say, I didn’t know, and I have a statement in my handbook that says that they have to tell me. The same for disability, as well.
And also, if somebody’s having counselling or taking medication, but they’re not having time off work, and they’re underperforming, and they haven’t mentioned it to you, you can only take the route based on the facts that you have. And so that statement will protect you against discrimination for disability, because you can turn around and say, “Actually, I didn’t know that they were pregnant. I didn’t know they had a medical condition. I didn’t know they were taking tablets. I didn’t know they had cancer, or were having counselling, or they were deaf, or they had … I didn’t know because they never told me. And had I known, I would have treated this differently. But I do have a paragraph in the handbook that says they have to tell me. They chose not to tell me, so I couldn’t base it on … I could only base it on the facts that I’ve got.”
And then environmental belief. And then we’ve got age, as well. Age discrimination. Be careful of this again with nights out, Christmas parties, not inviting somebody of a certain age because you think they’re too old, or even too young as well, and not include them. It’s age discrimination. Or just saying to somebody that, you know, you’re not the right age for this. You’re too young to have a promotion.
And gender, gender reassignment as well. How do you deal with that? And also, to prevent discrimination, you must have an employee handbook in place. Develop a clear written policy stating that discrimination is not tolerated. You must get everyone to sign to say they’ve read and understood it. And “understand” is a [inaudible 16:53] word for me, legally. Explain and train. Give examples of general comments. And give every staff member a copy of the policy. And somebody might not understand, you know, what is discrimination, what is bullying, what is harassment. You know, saying to somebody who’s Scottish, “Ach, ye blatherer!” every time they say something. You know, that can be deemed as harassment, bullying, and discrimination. And, you know, just saying things like … You know, I remember getting … I think I’ve told you this before. I used to have a … I used to work with quite a large man before, and he used to think it was funny, when I stood next to a desk, to sort of charge down the office and bounce into me. And then, you know … and you know, it did actually hurt. And then we used to get … if I got in a lift, and he was there, he’d go, you know, like, “Well …” You know, if I dropped something, or whatever, he’d go, “While you’re down there …” You know, and things like that. And so that’s just general comments. And I’m big enough, and it’s just … to respond to comments like that. Some people aren’t. Some people are actually … you know, and age, as well, matures people as to what to say.
What you need to do is protect your business, because people listening to me today, the employers, the managers, and HR, you’re the ones that are responsible. These investigations take a blooming long time to do. So it’s easier to get things in place at the very beginning with the handbook, the induction, getting everybody to understand what discrimination is, bullying and harassment. Sign it. Getting everybody to sign for what you’ve designed and developed. And training people as well, and giving them just examples of general comments that are not acceptable. We all like a laugh, don’t we? But there’s a point where it becomes actually harassment and bullying and discrimination. Give every staff member a copy of the policy that you’ve designed, and make sure it contains reporting rules. Explain the reporting procedure — can be informal or formal — and explain also it is confidential.
And make sure you’ve always got a grievance procedure in place, and an appeals procedure in place. Legally, you must have that.
So what you should be doing. You could display your policy or fair employment statement. Larger companies may have a dedicated person as a key contact for complaints. And all complaints, no matter how little, have to be dealt with quickly, seriously and straight away. Make sure you’ve got a bullying and harassment policy. Make sure you have an equal opportunity policy. And make sure you’ve got that maternity statement I spoke about. These are absolutely crucial to running an effective business. And remember to keep up-to-date social networking policy, mobile phone policy. Make sure your actual recruitment stage is spot-on. Make sure people that do recruitment for you, that they have… you have a good service agreement in place so that when something does go wrong, you’re not responsible for it. Delegate that responsibility to them.
And remember, with discrimination, equal opportunity, bullying, remember your subcontractors here as well, because they can make a claim, too. So you’ve got to get everything in place. Make sure everybody’s aware, and make sure they sign for your policies and you train everybody. So when you do advertise, this is where employers do mistake in the advertising. They get the wording wrong. They try and include as much information as possible with reference to the job.
You mustn’t state or imply in a job advert that you’ll discriminate against anyone. That includes saying you can’t cater to disabled people. The wording “recent graduate” or “highly experienced.” Use only when they are actual requirements of the job. And the wording “a driving part of the job is”… say, for example, “a driving part of the job.” Is it essential, or can they actually take occasional travel by train?
When you’re advertising, don’t just use local papers or post offices. Because what you’re doing is you’re discriminating just locally, and you’re discriminating against people nationally. And you may find yourself in the papers because of that. Women or only men magazines as well, you could be discriminating there.
And then defence documents I would use here are the application forms. Take advice in advertising on what you can and can’t do, and always put a job description and a personal specification in place when it comes to advertising.
You could specify that the successful applicant will be from a particular group if it is a requirement of the job. But remember, be very careful about the wording there. You may say you want a French person to do the job, but you don’t actually have to say a French person. What you can say is a French-speaking person. You might very well get a French person to do the job, but what you’re doing is you’re covering for anybody else that actually can speak French that isn’t. English, for example. You can ask about health and disability if it is a necessary requirement of the job.
Positive action. You might want a two ticks symbol. You get that when you work with a job center, to show that you’re a positive employer. Date of birth. Don’t ask on an application form, because of age discrimination. Criminal convictions. They don’t have to tell you if spent and don’t hold it against them. Different, though, for, say, the care sector or nurseries. So be very careful of that. And then we’ve got the trade union. Whether a member or forcing to be a member. Be very careful of discriminating there in an advert, as well.
And we’ve got protected characteristics. You might have underrepresented people in your workforce, profession, or maybe a certain ethnic group are not often given jobs in your sector. This has to be fair. So they must possess the skill to do the job. And you get this in some companies. They get so frightened that, you know, they … what they do is they get so frightened that they actually pick somebody from every ethnic group or language. And so, you know, we’ll have French, German, English, Spanish, Portuguese, and then we’ll have every ethnic group and every religion possible, just so we tick all the boxes. But they might not possess the skill to do the job. They’ve still got to possess the skill to do the job, at the end of the day.
So just make sure that, you know, with the controlled environment, if you’re doing everything right, don’t be frightened. Make sure you’re getting the right person for the job. Because this is ultimately what you should be doing. So then we’ve got interviews. Don’t … you know, asking the wrong questions at an interview. Singling individuals out for assessment based on their disability. “You’ve got one arm, so you must be doing that.” So if you’re going to do a personal assessment or a mini-task, don’t just single the one person out to do it. Get everybody to do the same task.
And it helps if you’ve got standard questions here. It helps if you’ve got a job personal specification. It helps if you’ve got a job description in front of you. It helps if you read the CVs or application forms, and then you’ve got standard questions, the same questions for everybody. The same assessments for everybody. And then don’t … you know, you may use health questionnaires at this stage, when you’ve offered somebody the job. And wrong questions … don’t ask about health, children or marriage. You can ask about disability, but be careful here. If they are necessary requirements of the job that can’t be met with reasonable adjustments.
And then defence documents. I would recommend that you use, at the interview stage, interview rating forms, a points system, reasonable adjustments. And don’t be put off … you know, lots of people that are disabled are very hard-working, committed individuals. I’m deaf. I’ve got a debilitating illness. I take medication three times a day. You wouldn’t know unless I told you. You wouldn’t have a clue how it affects me in my personal life. But … and I’ve had one day off in 12 years. But in paper, you probably wouldn’t take me on. So just listen to the person, and what reasonable adjustments do you have to do? And lots of councils now have funding for reasonable adjustments. Don’t be frightened.
And then we’ve got recruitment agencies. You might use recruitment agencies. You shouldn’t leave anything to chance here. And check what’s in the service agreement you have with the recruitment agency. Also make sure that they are using the documents that you are, or insist they use your structure and your documents, because you don’t want to fall foul of the law because of somebody else’s mistake.
And then we’ve got redundancy. Selecting a member for redundancies because they want that person to be included in a redundancy situation, or not using the right points system, or not letting employees have access to the points system, and thinking that they don’t have to, because they’re thinking about the actual recruitment side of it.
And then a points system … and think about pregnancy and redundancy, as well, when somebody’s off on maternity. And then we’ve got the defence documents here to use in the redundancy selection criteria. Using the right one. Having a correct criteria and a points system. Maybe not a last in, first out method. KPIs, key performance indicators are used within redundancy. Staff appraisals should be used. Sickness records and reporting procedures, as well.
And then we’ve got wages. Paying a member of staff less than another member of staff without a good reason is discrimination. And then be careful of the minimum wage here, and also making sure that with part-time workers, that they are paid pro rata to keep on top of this.
Defence documents I would use with wages are key performance indicators, appraisal systems, and also an audit on a regular basis of everybody’s wages to make sure that we haven’t got some part-timers that earn less than others, etc. Making sure that everything is audited on a regular basis.
Gender and gender reassignment. Have a policy in place, and have an open door and approachable policy which is confidential. Allowing time off for medical treatment. Make sure you’re consistent with. Allowing use of facilities appropriate to somebody’s gender. And after reassignment, a certificate, a new birth certificate is issued. So make sure and remember all your records reflect this, even down to social … you know, social clubs, etc. Because you don’t want to have a renewal of a pass going out in their previous name or sex that they were.
Ensure confidentiality of all information regarding their gender history, as well. And then what policies and procedures would I recommend? Well, equal opportunities policy, equal pay, equal opportunity and harassment policy. And maternity, a pregnancy statement. Family-friendly rights statement. A health statement. Exit interviews. Sickness policy and procedures with back up and return to work interviews. Appraisal systems. Key performance indicators. Health questionnaires, annually, maybe. And an induction form of this.
This is what you should be doing to say on the right side of the law with equality, with harassment, with bullying, and also discrimination, to make your business fair. I hope that you’ve enjoyed this webinar today. Another bite-size information. And remember, I’m giving you an overview and all today. I’m trying to put as much information as possible into my webinars. The slides and the recording will be available later on today on YouTube. You can access this on www.youtube.com/pbspressoffice.
If you have any questions about anything I’ve said, or if you’d like me to speak at an event that you’re hosting for your clients, if you’d like to feature my email on your … any of your websites for your clients to get some free advice off me, or if you want to find out more about what Peninsula do and how we integrate ourselves within 27,000 businesses, and are now on our 30th year as a family-run firm, contact me, email@example.com.
Always remember to quote the right webinar number. This is webinar number 33. If you are a Peninsula client, remember that’s what our advice line is for. To write your adverts. To write your policies. To write your policy policies, harassment policies, equal opportunity policies. To keep up to date with social networking. That is what you’re paying for us for. Do not struggle to do anything. If you’re advertising a job, let us write the advert. If you want the application forms, let us provide them for you. If you want the job description, help with that, or personal specification, or the point system, this is the service we offer to you. We want to keep you out of tribunal. We want to provide everything for you. That is what you’re paying us for. Make sure you’re using us and the advice line. It’s 24 hours a day, 365 days a year, seven days a week. So remember that.
Thank you very much for listening to me today. My last webinar of the year. So Happy Christmas to everybody, and a Happy New Year. I would actually sing a carol for you here. I don’t think you’d enjoy it. I’m full of a cold. So best not, probably. Thank you very much, and I’ll see you in the New Year.