Protecting your business from discrimination claims
There is no doubt that these are stressful times for all those working in the retail sector. Worries about COVID, significant staff absences, difficult customers and long hours all mean that tensions are at an all-time high for staff.
Sadly, this often means that disagreements and conflicts between staff are becoming all the more common. Worryingly for employers, the diverse nature of most retail workforces means such disagreements can often involve comments or interactions between staff that may be discriminatory.
Rows on the shop floor involving racial epithets or staff being treated differently (or perceiving they are being treated differently) because of their race, sex, age or religious beliefs are becoming an unpleasant part of working life for many.
Even if a business abhors such behaviour and disciplines or dismisses the perpetrator, the law as it stands still makes an employer vicariously liable for such acts. This can mean thousands of pounds in compensation where the incident took place at work or had a sufficient connection with work (Christmas parties or after work drinks are a common culprit).
The question then becomes what can a business do to protect itself?
There are many ‘soft’ approaches that can be adopted to reduce such incidents and promote staff harmony. However, we still see a large number of cases where an employee has acted in a discriminatory way towards a colleague. Fortunately, the law does allow employers a route to avoiding liability for such claims, when an employee has taken it upon themself to act in a discriminatory way.
Section 109(4) of the Equality Act 2010 states that an employer can avoid liability for the acts of discrimination undertaken by their employees in the course of their employment where a tribunal is satisfied that the employer took all reasonable steps to prevent such acts occurring.
The so-called ’reasonable steps’ defence, if successful, leaves the individual personally liable for the acts in question and not the employer. A number of employment tribunal decisions have set out a clear summary for what an employer must do to demonstrate it has taken the required ‘reasonable steps’.
Despite this, the defence is rarely run and is rarely successful, but this is only because almost every employer omits one crucial element.
The required steps indicated by the relevant case law are:
- having and implementing an equal opportunities policy and an anti-harassment and bullying policy and reviewing those policies as appropriate
- making all employees aware of the policies and their implications
- taking steps to deal effectively with complaints, including taking appropriate disciplinary action
- training managers and supervisors in equal opportunities and harassment issues
The ‘Achilles’ heel’
It is the last of these steps that is the ‘Achilles’ heel’ for almost every employer. Every company as a shiny equal opportunities policy that it is enormously proud of and is often framed and displayed. Most companies also deal effectively with such incidents when they occur.
However, although almost every company provides some form of equal opportunities training sporadically or on induction, the tribunals have made it clear that such training needs to be updated and provided regularly to staff to meet the standard required to avoid liability.
In a case from just last year in the Employment Appeal Tribunal (Allay (UK) Ltd v Gehlen UKEAT/0031/20 4 February 2021), the employer failed in its reasonable steps defence after an Indian colleague had suffered racist comments from his manager because the tribunal felt that its equality training had become ‘stale’.
What this case has made abundantly clear is that to protect itself (and hopefully to genuinely reduce the occurrence of such incidents), an employer needs to adopt a regular and thoughtfully created programme of equality training. Regular refreshers (which may not need to be attended training but could be email updates) to reinforce the required messages are also recommended.
Have you proved your evidence?
There are always challenges to delivering such training to a large retail workforce, especially when shift work is commonplace. However, there are now a multitude of virtual solutions that can assist with these difficulties and allow staff to attend training on an increasingly flexible basis, as well as providing a clear record of when and to whom the training has been given.
Hopefully, by employers being aware of the steps that the tribunals require in such cases, it will allow them to protect themselves from liability for the actions of its employees which are contrary to the values and ethos of the business.
If you’d like to discuss any of these issues or have questions about the article, please contact Stephen Mutch in the Employment and HR team.
Stephen Mutch
Director, Employment and HR
T: +44 (0) 161 393 9054 M: +44 (0) 7827 350 752
Stephen is a director in the employment and HR team. Stephen provides employment advice to clients across a wide ranges of sectors, including the provision of effective day to day HR advice. He is listed in Chambers & Partners as an ‘associate to watch’, having ‘a reputable litigation practice, regularly defending clients in employment tribunal claims’. Clients attest his advice is ‘always concise, pragmatic and with good legal grounding’.
My product is better than yours: the role of comparative advertising in a competitive world
Comparative advertising can capture your consumers’ attention: but with a complex legal regime of regulations, rules and case law, getting it wrong can result in potential penalties. So what are these rules and how do you ensure you ensure you stay on the right side of the line?
The year ahead for retail from a commercial property perspective
Given the continued uncertainty in the retail sector during these Covid stricken times, we look at the impact the pandemic is having on commercial property, including rent concessions; the Commercial Rent (Coronavirus) Bill; the effect of turnover rents; what next for shopping centres; and rent reviews.
Our quarterly retail update is designed to bring you the latest news and legal developments relevant to the retail sector. If there are any areas you would like more information on or if you have any questions or feedback, please do not hesitate to let us know via our feedback form or get in touch with any member of our team.
Copyright in this publication is owned by Pannone Corporate LLP and all rights in such copyright are reserved. Pannone Corporate LLP is a limited liability partnership registered in England and Wales with number OC388393. Authorised and Regulated by the Solicitors Regulation Authority. A list of members is available for inspection at the registered office, 378-380 Deansgate, Manchester M3 4LY. We use the terms “partner” to refer to a member of the LLP.