Module 1 of 2 · 40 minutes
Where discrimination actually happens at work
By the end of this module you will be able to
- Identify the four forms of prohibited conduct in workplace situations
- Spot indirect discrimination in a rota, a policy or a requirement
- Apply the reasonable adjustments duty
- Challenge and escalate proportionately
Work through it
1 interactive for this module, built on the WAJD Teach engine. Nothing moves until you ask it to, and every one has a written version if you would rather read it.
Amara We do this training every year and it is always the nine protected characteristics.
Nadia Which is the least useful part, because almost nobody at your work discriminates on purpose. The interesting question is where it happens when nobody intended it.
Amara Where does it?
Nadia Rotas, policies and requirements. Things that feel completely neutral because they apply to everyone.
Amara Give me one.
Nadia A requirement to work every other weekend. Applies to everybody equally. And it disadvantages people with caring responsibilities, who are disproportionately women.
Amara So we cannot have weekend rotas?
Nadia Of course you can. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim, and running a seven day service is obviously legitimate.
Amara So what is the problem?
Nadia That it is a test you have to pass, with reasons, and most organisations have never asked the question at all. Nobody sat down and asked who this disadvantages and whether there is a less discriminatory way to get the same outcome.
Amara And if we did ask, and wrote it down?
Nadia Then you are in a completely different position if it is ever challenged. Same rota, same aim, defensible instead of indefensible.
Amara What about banter? Everybody says it is just banter.
Nadia Harassment is unwanted conduct related to a protected characteristic that violates dignity or creates a degrading or offensive environment. And the test is the effect, considered reasonably, not the intention.
Amara So we did not mean it is not a defence.
Nadia Not to harassment, and not to indirect discrimination either. It is true, it is usually sincere, and it is not a defence to either of them. That is the single most useful sentence in this module.
Amara Reasonable adjustments. When does the duty start?
Nadia When you know, or could reasonably be expected to know, that somebody is disabled and at a substantial disadvantage. Actual or constructive knowledge.
Amara Not when they produce a diagnosis?
Nadia No, and waiting for a letter or an occupational health report before considering anything is one of the most expensive mistakes managers make. If somebody has told you they are struggling and why, the duty may already have started.
Amara What sort of adjustments are we talking about?
Nadia Usually small. A shift change. A phased return. Different equipment. A quieter space. Written instructions instead of verbal. And the one people miss entirely: adjusting a sickness absence trigger point so disability related absence is not counted the same way as everything else.
Amara We definitely count it the same.
Nadia Then that is a discrimination arising from disability claim waiting to be made, and it is one of the commonest there is. Adjusting the trigger is very often the reasonable adjustment.
Amara Last thing. Somebody raises a complaint. What do I need to be careful about?
Nadia Victimisation, and this is the trap. Treating somebody worse because they complained, or supported somebody else's complaint, is unlawful in itself.
Amara Even if the original complaint was not upheld?
Nadia Even then. And it is rarely dramatic. It is being left off the rota for the good shifts, being excluded from conversations, being quietly labelled difficult. That is usually the part that turns a defensible case into an indefensible one.
The written material
Almost nobody discriminates on purpose
Which is exactly why training that focuses on hostility misses. The Equality Act 2010 protects nine characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
It prohibits four things. Direct discrimination, treating someone worse because of a characteristic. Indirect, a rule applied to everyone that disadvantages a group without objective justification. Harassment, unwanted conduct related to a characteristic that violates dignity, where the test is effect rather than intention. And victimisation, treating someone badly because they complained or supported a complaint.
Indirect discrimination and harassment are where well meaning organisations get caught, because neither requires anybody to have intended anything.
Rotas, policies and requirements
Indirect discrimination hides in operational decisions that feel neutral. A requirement to work every other weekend disadvantages people with caring responsibilities, who are disproportionately women. A blanket no beards policy disadvantages Sikh and some Muslim men. A rule that all staff must be able to lift 25kg disadvantages disabled applicants, and is unlawful unless lifting is genuinely intrinsic to the role.
None of these are automatically unlawful. Indirect discrimination can be justified if the rule is a proportionate means of achieving a legitimate aim. But that is a test you have to pass, with reasons, and most organisations have never asked the question at all.
The practical discipline: when you introduce a rule, ask who it disadvantages, and whether there is a less discriminatory way to achieve the same aim. Write down the answer.
Reasonable adjustments
Unique to disability, and the duty most often missed. Where a provision, criterion or practice puts a disabled person at a substantial disadvantage, the employer must take reasonable steps to avoid it.
The duty is triggered by knowledge, actual or constructive. If you knew or could reasonably have been expected to know, the duty applies. Waiting for a diagnosis, a letter or an occupational health report before considering anything is one of the most common and most expensive errors.
Adjustments in practice are usually small: a change of shift pattern, a phased return, different equipment, a quieter workspace, more time, written instructions instead of verbal ones, or adjusting a sickness absence trigger point so disability related absence is not counted the same way.
Challenging, and when it becomes formal
In the moment, name the behaviour and not the person. 'I do not think we should be saying that' is enough. It is hard to escalate into a row and it makes clear the behaviour was noticed.
It becomes formal when it continues after being raised, when it is serious enough that informal handling would be inadequate, or when the person affected wants it treated formally, which is their decision rather than yours.
And note victimisation, which is the trap for managers. Treating somebody worse because they raised a complaint, including subtly, by excluding them, changing their shifts or marking them as difficult, is itself unlawful and is frequently the part that turns a defensible case into an indefensible one.
Knowledge check
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