Discrimination and Harassment

Employers are not only responsible for their own decisions. They can also be held liable for discriminatory acts, harassment and victimisation carried out by employees in the course of their employment. A business may avoid liability only if it can show that it took all reasonable steps to prevent the conduct.

For businesses, the exposure can be significant; discrimination awards are not capped in the same way as unfair dismissal, and claims may involve compensation for financial loss as well as injury to feelings. Management time, staff morale and reputational risk can all be affected as well.

Discrimination can arise in different ways, and the legal distinction is important.

Forms of discrimination include:

• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation
• A failure to make reasonable adjustments
• Discrimination arising from disability

Indirect discrimination can be particularly difficult because a rule or requirement may apply to everyone and still place a protected group at a disadvantage. In some cases, an employer may be able to justify that rule, but only if it is a proportionate means of achieving a legitimate aim.

Sexual harassment now requires much closer attention from employers. Since 26 October 2024, employers have had a legal duty to take reasonable steps to prevent sexual harassment of workers. If a tribunal finds that sexual harassment occurred and that the employer failed to meet that duty, compensation can be increased by up to 25%. The Equality and Human Rights Commission can also take enforcement action.

This means that employers should be thinking beyond a written policy; risk assessments, reporting procedures, manager training, workplace culture, client-facing risk, social events and the handling of complaints are all now crucial to protect businesses.

Bullying is not always unlawful discrimination in itself, but it still needs careful handling. It may overlap with harassment, grievance issues, victimisation or wider complaints about culture, particularly where the behaviour relates to a protected characteristic or follows an earlier complaint.

Disability is often one of the more sensitive areas for employers because the Equality Act imposes positive duties as well as restrictions. A business may need to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage, and claims can also arise where someone is treated unfavourably because of something connected to their disability, such as disability-related absence.

Risk often arises through ordinary management decisions: attendance, performance, flexibility, consultation and disciplinary steps may all need a different approach where disability is part of the picture.

Victimisation can arise where someone is treated badly because they raised a complaint, supported someone else’s complaint or assisted in an investigation. That means the employer’s response to a complaint can create a separate claim, even where the original allegation is disputed.

Whistleblowing is governed by a different legal framework, but it often overlaps with retaliation and complaint handling. If someone raises concerns and is then marginalised, disciplined or selected for redundancy, the business may face a further dispute about detriment or dismissal.

Complaints should be handled promptly, fairly and with due process, all of which should be properly recorded. A weak or defensive response that has not been accurately noted can make the employer’s position harder to defend later.

A strong defence usually begins before any claim is issued; employers are in a better position where policies are current, training is up to date, decisions are documented and complaints have been taken seriously.

If a complaint does escalate, the way it was handled internally is likely to come under scrutiny. Many disputes are resolved through internal grievance procedures, ACAS or settlement, but some proceed to tribunal and need to be defended on the documents, the evidence and the steps taken at the time of the complaint.

TLW Solicitors supports employers both in reducing the risk of equality-related complaints and in dealing with them when they arise. That may involve reviewing policies and procedures, advising on sexual harassment prevention, helping with complaints and investigations, addressing issues around disability and reasonable adjustments, or defending tribunal claims where matters have escalated.

We can help employers with:

• equality, diversity and anti-harassment policies
• sexual harassment prevention and complaint handling
• grievance investigations and responses
• disability, reasonable adjustments and absence-related issues
• victimisation, retaliation and whistleblowing concerns
• defence of tribunal claims and settlement negotiations

We aim to help businesses deal with these issues in a way that is practical, proportionate and legally defensible.