Avoiding Discrimination in the Workplace: A Practical Guide for SMEs
Most employers want to treat their employees fairly and create a positive working environment. However, workplace discrimination claims can arise even where there was no intention to discriminate.
For SMEs, discrimination issues can be particularly challenging. Small teams often work closely together, managers may wear multiple hats and decisions are frequently made informally. Whilst this flexibility can be beneficial, it can also increase the risk of inconsistent decision-making.
Understanding the basics of workplace discrimination and implementing simple management practices can help reduce legal risk whilst creating a fairer and more productive workplace.
What Is Workplace Discrimination?
Discrimination occurs when an individual is treated unfairly because of a protected characteristic.
The protected characteristics under the Equality Act 2010 are:
- age;
- disability;
- gender reassignment;
- marriage and civil partnership;
- pregnancy and maternity;
- race;
- religion or belief;
- sex; and
- sexual orientation.
Discrimination can occur during recruitment, employment, promotion, training, disciplinary procedures, redundancy exercises and many other workplace situations.
Discrimination Is Not Always Intentional
Many discrimination claims arise because managers acted without considering the wider implications of a decision.
For example:
- applying policies inconsistently;
- making assumptions about an employee’s circumstances;
- failing to consider reasonable adjustments;
- allowing workplace banter to go too far; or
- making recruitment decisions based on “gut feel” rather than objective criteria.
Good intentions alone do not always prevent discrimination risks.
Recruitment Is Often the First Risk Area
Recruitment decisions should be based on the skills, experience and suitability of the candidate for the role.
Employers should avoid:
- making assumptions about family commitments;
- asking inappropriate personal questions;
- favouring candidates who are similar to existing employees;
- using discriminatory language in job adverts; and
- allowing unconscious bias to influence decisions.
Using job descriptions, person specifications and structured interview questions can help ensure recruitment decisions remain objective and consistent.
Focus on Evidence Rather Than Assumptions
One of the most effective ways to reduce discrimination risks is to focus on facts rather than assumptions.
Managers should base decisions on:
- performance;
- attendance;
- conduct;
- qualifications;
- experience; and
- business requirements.
They should avoid making assumptions about what an employee can or cannot do because of a protected characteristic.
The question should always be: “What evidence supports this decision?”
Consistency Matters
Employees often compare how they have been treated against how others have been treated.
Inconsistent decision-making can quickly create concerns about fairness.
Whilst every situation is different, employers should aim to apply policies and procedures consistently wherever possible. If different decisions are made, managers should be able to explain the reasons behind them.
Consistency is particularly important when dealing with:
- disciplinary issues;
- grievances;
- sickness absence;
- flexible working requests;
- promotions; and
- redundancy situations.
Disability and Reasonable Adjustments
Disability-related issues are among the most common areas of workplace discrimination risk.
Employers may have a duty to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage.
Examples may include:
- adjusting working hours;
- modifying duties;
- providing specialist equipment;
- changing workplace practices; or
- allowing additional support.
Employers should avoid making assumptions and instead discuss potential adjustments with the employee before reaching conclusions.
Train Managers to Recognise Risks
Many discrimination issues arise because managers are unfamiliar with their responsibilities.
Providing managers with basic training can help them:
- identify potential discrimination risks;
- manage difficult conversations appropriately;
- apply policies consistently; and
- recognise when HR advice may be needed.
For SMEs, even a small amount of management training can significantly reduce workplace risk.
Workplace Culture Matters
Policies alone do not prevent discrimination.
The behaviour that is accepted, tolerated or ignored within the workplace often has a greater impact on culture than any written document.
Employers should encourage:
- respectful communication;
- inclusive behaviour;
- professional conduct; and
- early reporting of concerns.
Managers should lead by example and challenge inappropriate behaviour when it occurs.
Documentation Can Protect Your Business
Good documentation helps demonstrate that decisions were made fairly and for legitimate business reasons.
Employers should keep records of:
- recruitment decisions;
- performance discussions;
- disciplinary action;
- grievances;
- reasonable adjustment discussions; and
- management decisions affecting employees.
If concerns are later raised, clear records can help explain why decisions were made.
Address Concerns Early
Many workplace disputes escalate because concerns are ignored or allowed to develop over time.
Employees should know how to raise concerns and managers should be prepared to deal with issues promptly and professionally.
Addressing concerns early can often prevent misunderstandings from developing into formal grievances or tribunal claims.
Common Mistakes SMEs Make
Some of the most common discrimination risks arise when employers:
- make assumptions rather than asking questions;
- apply policies inconsistently;
- fail to document decisions;
- ignore inappropriate workplace behaviour;
- overlook reasonable adjustments;
- rely on informal management practices; or
- delay addressing concerns.
Most discrimination claims do not arise because employers intended to discriminate. They arise because decisions were poorly managed, poorly documented or poorly communicated.
Prevention Is Better Than Cure
Avoiding discrimination is not simply about complying with employment law. It is about creating a workplace where decisions are fair, objective and based on evidence.
For SMEs, clear policies, consistent management practices, good communication and early intervention can significantly reduce the risk of discrimination claims whilst helping to build a positive workplace culture.
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