3 Key Steps to Protect your Organisation from Equality & Discrimination ClaimsPosted in : Supplementary Articles NI on 16 November 2016
Have you ever sought legal advice on an equality/discrimination claim just in against your organisation and immediately started to worry? Worry that is, not about the claim itself, but the size of the frown you’ll see when you have to admit to your legal adviser that you really did do very little proactive work to ensure that such claims were unlikely to happen in the first place? You might not hear “Why present this claimant with an open goal?” But that may well be the gist of your adviser’s legal opinion.
The truth is that most employment lawyers acting on behalf of a claimant will begin claims for equality and discrimination in much the same way. Early on they’ll be looking for weaknesses in your defences. Weaknesses that will not necessarily guarantee their client success but will at least put you on the back foot from the very beginning of the tribunal hearing. They’re not looking for winning goals at this stage just open ones or at least easy ones to shoot at.
So here’s some good old fashioned practical advice on how to close down the open goals.
Okay. So we may be about to disclose a trade secret here and risk the wrath of claimant advisers throughout the jurisdiction. But fewer reasons to complain about equality and discrimination issues has to be a better place for everyone.
So we’re going to tell you how claimant lawyers aim to expose weaknesses at an early stage in an employer’s defence to equality and discrimination claims. It’s a fairly formulaic procedure but no less effective because of it. It consists of three simple steps.
Request a copy of the employer’s Equality and Diversity policy. If you don’t have one or you do but it’s out of date you can be sure the claimant’s lawyer will be keen to point this out to the tribunal as soon as possible in the hearing in the hope that the tribunal will be persuaded you pay little more than lip service to equality issues in your organisation.
SO HOW SHOULD YOU RESPOND?
Make sure you have an up-to-date equality and diversity policy. It doesn’t really matter if it’s called an equality policy, equal opportunities policy, diversity statement, policy on respect just as long as it outlines your organisation’s commitment to the provision of equal opportunities and the protection against discrimination for all staff and job applicants and sets out how it does this.
Attempt to convince the tribunal that any equal opportunities policy was not effectively communicated or embedded into the organisation.
Even if you can produce an all shiny and new equality and diversity policy the claimant’s lawyer is going to want to prove that you never took it out of the top drawer in your office.
SO HOW SHOULD YOU RESPOND?
Be ready to show that the policy was actively implemented in your organisation. Do this by showing that it was:
# communicated in whole or in part to staff by email or, for example, in your organisation’s newsletter if not regularly then at least from time to time.
# available to access in your staff handbook or online e-handbook,
# prominently displayed in your organisation, for example, in the staff room, on a canteen notice board or on your organisation’s intra-net.
# cross-referenced in other policies such as your organisation’s recruitment or promotions policies
# introduced to staff during their onboarding # featured in recent equality and diversity training
Show that your staff have had no recent or relevant training on equality and diversity issues in the workplace.
SO HOW SHOULD YOU RESPOND?
You will need to show that your organisation has recently trained all staff on equality and diversity issues not just senior employees or managers. In the old, pre-Internet days, tribunals may have had some sympathy with you if you tried to point out just how difficult it is to train a large work force when, for example, they’re spread over 3 locations and with 20% of staff off site at any point in the year. Now, with the advent of e-learning, which has considerably reduced the administrative burden of mass compliance training, you should expect no mercy. By the way, our own e-learning module enitled “Equality and Diversity in the Northern Ireland Workplace” is now being used by many leading employers here. Helpful information is available here :
Tribunals don’t always analyse the quality or content of the training but you should be prepared to prove that it covered the key components of equality legislation in Northern Ireland and what amounts to harassment at work. Simply because your organisation has recently purchased recently labelled “Diversity at Work” that may not convince a Tribunal that your staff have been properly informed and trained on what is and is not acceptable conduct at work,
Taking all of the above action won’t make your organisation bullet proof against equality and discrimination claims but it will put you in a much better position to defend yourself against such claims. Moreover, you can properly expect fewer of them too.
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.