How an Employer Can Successfully Defend a Discrimination Claim

1. The Equality Act 2010

The Equality Act 2010 is the primary piece of legislation governing discrimination in the workplace in the UK. It consolidates previous anti-discrimination laws and outlines nine protected characteristics:

1. Age
2. Disability
3. Gender reassignment
4. Marriage and civil partnership
5. Pregnancy and maternity
6. Race
7. Religion or belief
8. Sex
9. Sexual orientation

Employers must avoid direct and indirect discrimination, harassment, and victimisation. To successfully defend a claim, the employer must show that they complied with their duties under the Equality Act and that the actions taken were based on legitimate, non-discriminatory reasons.

2. General Defence Strategies for Discrimination Claims

Legitimate, Non-Discriminatory Reason for the Action

• Documentation: Ensure all employment decisions are well-documented, including performance reviews, appraisals, and disciplinary records.
• Consistency: Show that policies and procedures were applied consistently to all employees.
• Comparable Cases: Demonstrate that other employees in similar situations were treated similarly, irrespective of their protected characteristics.

Objective Criteria

Employers should demonstrate that decisions were based on objective criteria, such as poor performance, misconduct, or operational needs, rather than subjective or biased considerations.

3. Race Discrimination Claims

Key Considerations:

• Under the Equality Act 2010, race includes colour, nationality, ethnic or national origins.
• Claims often involve allegations of unequal treatment in recruitment, promotion, pay, or disciplinary measures.

Defence Tips:

• Ensure recruitment and promotion decisions are based on objective, transparent criteria.
• Conduct anonymised recruitment processes where possible.
• Provide cultural competency training to reduce unconscious bias.
• Prove that any comparator used by the claimant is not in a materially similar situation.

Relevant Case Law: Barton v Investec Securities Ltd (2003) highlights that objective and fair recruitment processes can defeat claims of discriminatory treatment.

4. Disability Discrimination Claims

Key Considerations:

• Disability is defined under the Equality Act 2010 as a physical or mental impairment that has a substantial, long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.
• Claims often involve allegations of failure to make reasonable adjustments, discrimination arising from disability, or harassment.

Defence Tips:

• Show that reasonable adjustments were made, or demonstrate a legitimate reason if adjustments were deemed unreasonable.
• Evidence showing that decisions related to dismissal or redundancy were not linked to the disability.
• Provide detailed occupational health assessments and follow-up.

Relevant Case Law: Griffiths v Secretary of State for Work and Pensions (2015) clarified that employers must adjust absence management procedures for disabled employees, but they are not obligated to disregard absences altogether.

5. Sex Discrimination Claims

Key Considerations:

• Claims may relate to unequal pay, promotion, recruitment, or harassment.
• Employers must be mindful of indirect discrimination, such as policies that disproportionately affect women due to caring responsibilities.

Defence Tips:

• Implement robust equal pay audits to prevent pay disparity claims.
• Ensure any job requirements or selection criteria do not disproportionately exclude candidates based on gender unless justified.
• Provide training on sexual harassment and gender equality.

Relevant Case Law: Allonby v Accrington & Rossendale College (2004) highlights the importance of proving that pay disparities are based on factors unrelated to sex.

6. Reasonable Steps Defence

Under Section 109(4) of the Equality Act 2010, employers can use the “reasonable steps” defence to avoid liability for discriminatory acts committed by employees if they can demonstrate they took all reasonable steps to prevent such acts.

Challenges with the Reasonable Steps Defence:

• High Threshold: Courts often set a high bar for what constitutes “reasonable steps”.
• Proactive Measures: Employers must show they proactively implemented anti-discrimination policies, provided training, and acted promptly when issues arose.

Key Case Law:

• Allay (UK) Ltd v Gehlen (2021): The Employment Appeal Tribunal (EAT) held that the employer’s reliance on outdated training and lack of follow-up rendered the reasonable steps defence ineffective.
• Canniffe v East Riding of Yorkshire Council (2000): Highlighted the importance of regular, comprehensive training as part of reasonable steps.

Best Practices:

• Conduct frequent equality and diversity training.
• Regularly review policies and procedures.
• Promptly investigate any allegations of discrimination.

7. Top Tips for Managing Employment Claims and Tribunals

1. Internal Investigations: Conduct a thorough and impartial investigation as soon as a complaint is made.
2. Maintain Accurate Records: Keep clear, contemporaneous records of performance issues, complaints, and disciplinary actions.
3. Legal Advice: Seek early legal advice to assess the strength of your defence.
4. Tribunal Preparation: Ensure witness statements are consistent and backed by documentary evidence.
5. Demonstrate Fair Procedures: Show that grievance and disciplinary procedures were followed as per the ACAS Code of Practice.
6. Avoid Retaliation: Ensure no retaliatory action is taken against an employee who raises a complaint.
7. Settlement Consideration: Consider whether an early settlement through ACAS conciliation could be beneficial to avoid lengthy litigation.
8. Witness Credibility: Train witnesses to remain calm, factual, and professional during cross-examination.

Conclusion

To defend a discrimination claim, UK employers must demonstrate fairness, consistency, and compliance with the Equality Act 2010.

Robust policies, regular training, and transparent processes reduce the risk of successful claims and strengthen the employer’s defence in employment tribunals.

Courts and tribunals tend to favour employers who can demonstrate they took all reasonable steps to create an inclusive and fair working environment.

How we can help

If you require help, we offer a no-cost, no-obligation 20-minute introductory call as a starting point and in some cases where appropriate, a fixed fee appointment.

Please email wewillhelp@jonathanlea.net providing us with any relevant information ensuring that any call we have is as productive as possible. After this call, we can then email you a scope of work, fee estimate, and confirmation of any other points or information mentioned on the call.

This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.