Recent press reports suggest that a potential legal battle between the Scottish and UK Parliament is looming because the UK government is blocking a piece of devolved legislation aimed at making it easier for transgender people to change their legally recognised sex. The reason given for this move by Westminster is that the proposed change in Scottish law could impact on equality laws that apply across Great Britain as set out in the Equality Act 2010.
The Equality Act
The Equality Act came into force in October 2010. Some believe it could be the basis for triggering a constitutional crisis, but in any event it’s worth remembering it continues to have significant implications for all employers. The Equality Act covers almost every aspect of employing someone, either directly as an employee or as a sub-contractor.
Disabled Workers and Reasonable Adjustments
Under the Equality Act, employers have a responsibility to make sure that disabled people can access jobs and services as easily as non-disabled people. The duty extends to making “reasonable adjustments”. Defining exactly what is “reasonable” may sound pretty vague, but in terms of the Equality Act a “reasonable adjustment” is a change deliberately designed to remove or reduce any barriers that a disabled individual, or indeed any job applicant, may be faced with in applying for or performing a job.
These barriers can include:
- a physical feature of the workplace (including the layout of the premises, the lack of a lift or toilets with wheelchair access);
- the need for extra equipment or support e.g. for a blind person; and
- other working arrangements, such as the hours an employee is required to work, the duties they are required to undertake, and the targets they are asked to meet.
The onus is on you, the employer, to show that any adjustments made are reasonable. Clearly a small business may not be able to afford the same level of adjustments as a large company, so the law does not require you to make adjustments that are unreasonable. For example, there may be cases where the cost of any such adjustment disproportionately outweighs the likely benefit, or where it may cause significant disruption to your business. In these circumstances, you should still try to find other ways to remove any disadvantage a disabled worker or applicant might suffer, because the consequences of failure to make those reasonable adjustments can be severe.
Failure to Make Reasonable Adjustments
A failure to make reasonable adjustments for a worker or applicant with a disability will constitute discrimination under the Equality Act. In most cases, an informal complaint or a formal grievance about the employer may be the outcome. However, in some cases, you could find yourself and your business facing a claim for unlawful discrimination before an Employment Tribunal.
Where the Tribunal makes a finding of a failure to make reasonable adjustments, the employer can be liable for an unlimited sum in damages – there is no cap. It is important therefore that you put in place appropriate measures to ensure any disadvantage suffered by a disabled worker or applicant is alleviated. Failure to do so could potentially have very costly consequences. However, it is not just disabled individuals who could make a claim for discrimination (in recruitment or employment) through the Employment Tribunal.
Discrimination and Protected Characteristics
The Equality Act 2010 protects individuals from discrimination by a variety of organisations. These include transport services, schools, and colleges and healthcare providers, as well as employers. The Act sets out nine “protected characteristics”, which are age, disability, gender reassignment, marriage or civil partnership (in employment only), pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Under the Equality Act, discrimination involving one or more of these characteristics, in any context, is unlawful. Employers must therefore pay particular attention to recruitment policies, the content of job advertisements, and workplace practices.
The Equality Act 2010 also has the effect of widening the definition of “employment” for the purposes of discrimination claims. Through the legal principle known as vicarious liability, the employer can be liable for the legal wrongs committed by an employee in the course of their employment even where the employer themselves has done nothing wrong.
In other words, you as the employer may be liable for an action that contravenes the 2010 Act taken not only by your employees, but also by your authorised agents or sub-contractors, whether you knew about those discriminatory actions or not. Vicarious liability applies not just to full time employees but also where there is temporary employment, provided the employer has some control over how the “employee” carries out the work or where they are integrated into the business. The employer can also be vicariously liable for the actions of temporary workers supplied by an employment or recruitment agency.
Defence Against Vicarious Liability
You may have a defence against vicarious liability under the Equality Act 2010. For example, if you can show that you took all reasonable (that word again!) steps to prevent the employee from doing the alleged act of discrimination. The bar is set extremely high for this defence so you will need to speak to an expert.
Talk to the experts here at Motion Paradox about protecting yourself and your business from Equality Act claims. We can give you advice about developing, implementing, and monitoring policies and practices that will ensure your business is inclusive and insulated from potential harm.