Discrimination in the Workplace: What Employers Need to Know

We look at what employers need to know about discrimination in the workplace and how they can avoid negatively impacting staff morale, expensive litigation and reputational damage.

Discrimination in the workplace

Who is Protected from Discrimination?

Part 5 of the Equality Act 2010 (EqA2010) protects different categories of individuals against work-related discrimination, including:

  • Job applicants
  • Current employees
  • Former employees
  • Contract workers
  • Agency workers
  • Vocational trainees
  • Those seeking or holding professional or trade qualifications
  • Those seeking or holding membership of trade organisations (including corporate members)

In a workplace setting, the EqA2010 is concerned with discrimination in respect the following characteristics:  age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

There are various types of discrimination and other unlawful conduct set out in the EqA 2010 that apply to most (and in some cases all) of the protected characteristics:

  • Direct discrimination (section 13).
  • Indirect discrimination (section 19).
  • Harassment (section 26).
  • Victimisation (section 27).
  • Instructing, causing, inducing and helping discrimination (sections 111 & 112)

Employers’ Liability for Discriminatory Acts of Employees

For the purposes of the EqA 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer (section 109(1)), regardless of whether the employee’s acts were done with the employer’s knowledge or approval (section 109(3)).

So, an employer can be “vicariously liable” for discrimination, harassment or victimisation committed by an employee in the course of employment, but an employer will only be liable for its employees’ discriminatory actions if these are done “in the course of employment”.

In some cases, in may be difficult to clearly identify what constitutes “in the course of employment” and some situations may be considered an extension of employment, such as staff Christmas parties (on or off site) and informal social gatherings immediately after work.  Factors to take into consideration include:

  • Whether the incident took place on the employer’s premises.
  • Whether the victim and/or discriminator were on duty.
  • Whether the gathering included employees’ partners, customers or unrelated third parties.
  • Whether the event took place immediately after work.

In circumstances where discrimination, harassment or victimisation committed by an employee in the course of employment has been found to taken place, there is potentially a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description.

What is a Reasonable Steps Defence?

Where an employee has committed an act of discrimination, harassment or victimisation against a colleague, the employer will not necessarily be liable.  In summary, reasonable steps an employer takes to prevent discrimination, harassment or victimisation will usually include:

  • 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.
  • Training workers, managers and supervisors in equal opportunities and harassment issues.
  • Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

To succeed with a “reasonable steps” defence, the employer must have taken such steps before the act of discrimination or harassment occurred.

Acting reasonably in response to a complaint of discrimination or harassment is not in of itself a sufficient reasonable step and where a tribunal determines that a further step not taken by the employer should have reasonably been taken, the reasonable steps defence will fail, even if that step would not have prevented the discrimination that occurred.

What HR Policies Should Employers Implement?

Not all HR policies and procedures are required by law but there are strong legal reasons for including those that aren’t.  The essential HR policies and procedures that employers should have in place, some of which are required by law, are as follows:

  • Disciplinary policy
  • Grievance policy
  • Equal opportunities policy
  • Harassment and bullying policy
  • Maternity and family friendly policy
  • Flexible working policy
  • Whistleblowing policy
  • Health and safety policy
  • Social media policy
  • Absence Management policy
  • Holiday policy
  • Performance improvement policy
  • Drugs and alcohol policy
  • Data protection policy
  • Bribery policy
  • Modern slavery policy

It is important to note that simply having these essential HR policies in place is not in of itself a “reasonable step”.  Employers must ensure all policies are effectively communicated to all workers and that they are fully understood.

Essential HR Policies

What Training Should Employers Implement?

Providing training to all employees on equality, discrimination and harassment, with additional training for managers and supervisors who hold responsibility for recruitment and employment decisions is a ‘reasonable step’ employers must take to prevent discrimination, harassment or victimisation in the workplace.

Employers should provide regular training on their equality and anti-harassment policies to ensure employees understand both their own and their employer’s rights, duties and obligations.

The training should cover:

  • An outline of the law, including all the protected characteristics and prohibited conduct.
  • Why the employer introduced the policies and how it puts them into practice.
  • The standards of behaviour expected of all staff and how the employer deals with unacceptable conduct.
  • The risk of condoning, or seeming to approve, inappropriate behaviour, and personal liability.
  • How prejudice can affect the way an employer functions and the impact that generalisations, stereotypes, biases, or inappropriate language in day-to-day operations can have on people’s chances of obtaining work, promotion, recognition and respect.
  • The equality monitoring process.
  • What an employee should do if they experience discrimination, harassment or victimisation.
  • How managers should handle complaints of discrimination, harassment or victimisation.
  • The employer’s approach to equality, diversity, and preventing discrimination, harassment and victimisation.
  • The roles and responsibilities of employees in making the policy work effectively in practice.
  • Who employees should go to if they need advice on equality and discrimination issues. For example, members of HR or senior management who are trained to deal with these issues or, in larger workplaces, the trade union equality representatives.
  • The employer’s commitment to supporting those who report discrimination and harassment, and the anti-victimisation measures it has in place.

It is good practice for equality and anti-harassment training to form part of all workers’ induction procedures. This is an effective way of ensuring that all new staff are clear about the behaviours expected in the workplace and how to report instances where behaviour falls below this standard. The induction pack should include a copy of the employer’s relevant policies, together with information on any groups within the organisation which support employees with particular protected characteristics.

Employers should keep records of who has received the training and ensure that it is refreshed at regular intervals.

The EAT’s decision in Allay (UK) Ltd v Gehlen highlights the importance of ensuring that equality training is refreshed regularly. The employer was unable to rely on the “reasonable steps” defence to a harassment claim as the equality and diversity training delivered to employees 20 months before the harassment was “stale” and there was evidence that the training given was insubstantial and that employees had forgotten it.

Essential Training Courses

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on essential HR policies and procedures, discrimination, harassment and victimisation in the workplace.  If you have any queries or concerns you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

UK Employment Law Will Not Be Devolved to Scotland

The UK Government has confirmed that there are no plans to devolve UK employment law to the Scottish Administration.

UK Employment Law

Current Legal Position on UK Employment Law

Reserved matters are political powers – legislative or executive – that are held exclusively by a particular political authority, usually in multi-national states such as the United Kingdom of Great Britain and Northern Ireland, or in federal countries like the United States of America, Canada and Australia.

UK Employment law is currently a reserved matter in Scotland, under Schedule 5 of the Scotland Act 1998, covering employment (employment and industrial relations, health and safety, non-devolved job search and support).

Will UK Employment Law be Devolved?

On 6 September 2022, a House of Commons debate took place on the devolution of UK employment law to Scotland. Jane Hunt MP, Parliamentary Under-Secretary for Business, Energy and Industrial Strategy (BEIS) confirmed that the government has no intention to devolve legislative competence for employment rights matters to the Scottish Administration.

Key reasons included the following:

  • For the labour market to work most effectively across Great Britain, the underlying legislative framework concerning rights and responsibilities in the workplace needs to be consistent.
  • Devolution could create a two-tier employment rights framework, with Scotland adopting different policy and legislation to England and Wales. This would create a significant burden for businesses operating on both sides of the border.
  • Devolving employment rights could disadvantage workers by suppressing the free flow of labour between England and Scotland.

Will Employment Tribunals be Devolved? 

Devolution of employment tribunals is currently planned to take place and Ms Hunt confirmed that once the Order in Council drafting has concluded, the UK Government and Scottish Administration will look to agree a timeline for devolution of the first tranche of tribunals, but the Ministry of Justice has confirmed that devolution of employment tribunals will not happen before 2025.

What About the Employment Bill?

 Ms Hunt also confirmed that there is an “ambitious legislative programme” including a “comprehensive set of Bills” to enable the government to deliver on its priorities. She pointed to government support given to Private Members’ Bills on tips and neonatal care, legislation extending the ban on exclusivity clauses in contracts and guidance on employment status.  She also referred to the Carers’ Leave Bill, which received its second reading in the House of Commons on 9 September 2022.

When asked why the UK Government is not banning fire and rehire practices, Ms Hunt said that a ban would not be appropriate as in some situations this option can play a valid role and provides flexibility for businesses. She referred to the government’s “proportionate action” to address firing and rehiring by bringing forward a statutory code of practice but did not indicate a timescale for when a statutory code of practice might be introduced.


Confirmation that UK employment law will remain a reserved matter and that the current UK Government appears to have no desire to change that position will undoubtedly be welcome news to employers who operate sites across the UK, but following the recent introduction of the Brexit Freedom Bill (The Retained EU Law (Revocation and Reform) Bill and the significant transformation to workers’ regulations it will incur, the positives of UK employment law remaining a reserved matter will likely be overshadowed.