Does anti-discrimination law need toughening up?

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Whilst I agree discrimination law needs to be toughened, so does the quality of investigations into such allegations as poor information gathering to either support or refute the allegations means ...


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A legal requirement to have anti-discrimination policies and providing training on these could help

We have come a long way since the1970s and 1980s when programmes like the Benny Hill Show, Mind Your Language, Love Thy Neighbour and Are You Being Served were broadcast and littered with 'jokes' about women, older people, sexual orientation, and race. What was considered to be comedy back then would be viewed as discriminatory in 2016.

When Turbervilles Solicitors commissioned independent research (polling more than 1,000 employees of all ages across the UK) on language in the workplace the results were alarming. We found that five in 10 employees aged 25 to 34 (four in 10 among other age categories) had heard discriminatory remarks at work (comments that could cause offence because of somebody’s age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation).

The research found that nearly half of all employees (46%) hear discriminatory remarks on a weekly basis and this rises to seven in 10 employees (72%) on a monthly basis. Verbatim remarks regarding discriminatory comments included: “Women are only useful for wearing skirts”, calling an older colleague a “dinosaur”, referring to Pakistani workers as “ragheads”, stating “Muslims are terrorists”, calling a black person a “darkie”, and stating “I hate all queers”.

Despite more than 40 years of legislation, from the Race Relations Act in 1976 to the Equality Act in 2010, are businesses and their staff still caught in a time warp? Why are UK employers in 2016 failing to tackle discrimination or mitigate the risk of discrimination in the workplace?

The reality is current legislation alone can’t change attitudes and practices at work. It is up to employers to adopt a zero tolerance approach to acts of discrimination in the workplace. Having an equal opportunities policy, anti-harassment policy and/or a dignity at work policy is a good starting point. But it is not enough for employers to simply pay lip service to these policies.

Many workers are not even aware these policies exist in the workplace. Many may not appreciate that what they say or do is unlawful. So it is vital that regular training and education about these policies takes place and permeates to everyone in the organisation, so they have a much better understanding about what is unacceptable behaviour.

Perhaps for the Equality Act 2010 to be really effective and combat discrimination, it should be a legal requirement for all employers to: have anti-discrimination policies in place and that set provisions must be included in those policies; and provide meaningful training on those policies and keep a record when staff training has taken place.

Yes the 2010 Act provides what is called a 'reasonable steps defence' for employers who provide such policies and training, which provides an employer with a defence on liability for a claim. However, it does not deal with those workers who suffer in silence or who cannot afford to bring a claim against their employer.

The Employment Rights Act 1996 sets out a statutory requirement to provide minimum terms and conditions of employment. The 1996 Act or the 2010 Act could be amended to cover policies and training on discrimination. If primary legislation is not amended then what about introducing an Acas code of practice similar to the one we have on disciplinary and grievance procedures, providing minimum requirements on good practice and where compensation can be increased if employers fail to follow the code?

What about introducing fines against employers who don’t have anti-discrimination policies and provide training? If we are to finally rid ourselves of discrimination in the workplace then changes need to take place where unacceptable behaviour is highlighted so that employers are forced to act.

Marc Jones is an employment law specialist and partner at Turbervilles Solicitors

Comments

Whilst I agree discrimination law needs to be toughened, so does the quality of investigations into such allegations as poor information gathering to either support or refute the allegations means sometimes cases come to ET because individuals were denied transparency robustness in the process so their anger and suspicions remain. Further no organisational learning arises. 'Zero tolerance' can appear to be the right thing to do but can also be a blunt instrument as it closes off the need to explore underlying attitudes and find ways to address issues of misinformation arising from propaganda based on fear. Everyone deserves a second chance if they have acted out of ignorance but if acting wilfully and knowingly then they deserve the outcome appropriate to the severity of their actions. Simply using 1-2 hour online training packages is a poor substitute for changing attitudes that have taken decades to embed. There needs to be a combination of interventions having completed an audit of needs to identify specific barriers in any given organisation.


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