It seems like a week cannot pass without a report of harassment or inappropriate behaviour by high-profile figures or within well-known businesses and brands. This is despite legislation that has been designed to prevent harassment and discrimination being in place since the 1970s. Greater awareness of this legislation through the news and social media appears to have given individuals the confidence and impetus to call out bad behaviour. Are employers up to speed though and keeping pace with the changes in society and what equality now means in the workplace?

The Equality Act is key

The Equality Act came into force on 1 October 2010, bringing together over 116 separate pieces of legislation into one single Act. Combined, they provide a legal framework that seeks to protect the rights of individuals and advance equality of opportunity for everyone.

The nine main pieces of legislation that have merged are:

• the Equal Pay Act 1970;
• the Sex Discrimination Act 1975;
• the Race Relations Act 1976;
• the Disability Discrimination Act 1995;
• the Employment Equality (Religion or Belief) Regulations 2003;
• the Employment Equality (Sexual Orientation) Regulations 2003;
• the Employment Equality (Age) Regulations 2006;
• the Equality Act 2006, Part 2; and
• the Equality Act (Sexual Orientation) Regulations 2007.

The Act is designed to protect individuals from discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

What have employers done to ensure an equal and diverse workplace?

Many employers have a tailored handbook setting out their policies and these should cover anti-discrimination, anti-harassment, diversity and inclusion, and parental leave but these policies may have been in place for many years and need updating. Other employers may also provide training to staff, but most do not update their policies or provide detailed training. Both of which are required as a minimum to successfully defend discrimination claims by the company. Many employers though still don’t even have a policy in place.

Issues often arise where there is inconsistency in the way employers apply policies or behave generally. This is something that employers need to do if they want to truly embed a culture of equality and diversity in their workplace.

The Equality and Human Rights Commission has issued guidance for both employers and employees and ACAS has also produced some very useful guides to help employers.

Where are we now?

Nine years on from when the Equality Act 2010 came into force, no one could have predicted the speed of change in society, perhaps fuelled by the rise of social media platforms and the ability to publicise issues to a wider audience and see an immediate impact when other users respond. We saw in 2017/18 how quickly a simple hashtag – #MeToo – became a global phenomenon. This heightened society’s collective awareness of discrimination to an unprecedented level and shows no sign of slowing down.

More recently, there’s also been significant exposure in the media about the gender pay gap, as well as mandatory gender pay gap reporting. This has been accompanied by stories of high-profile public figures protesting unequal pay at the BBC amongst other well-known organisations adding more fuel to the fire.

Following the Weinstein scandal and #MeToo we’re also seeing more and more stories emerge of inappropriate behaviour in the workplace being called out. How employers handle this is under greater scrutiny than ever before. The use of non-disclosure agreements (NDAs) in these high-profile cases to potentially cover up wrong-doing has led to new guidance being issued to solicitors on the use of NDAs in the context of employment law.

Finally, as we approach the second deadline for the submission of pay gap data, employers need to be able to account for any discrepancies between last year’s report and the one they make this year. These reports will face further scrutiny in the media and by the employees involved in them.

Looking to the future

Commentators on this recognise that the law can only go so far in creating a safe workplace and that the best way to create a positive, safe and unintimidating workplace culture is for businesses to not only have anti-harassment policies on paper but also to take steps to ensure the culture of organisation supports a zero tolerance of such inappropriate behaviour. This starts with training your staff on the policies and managers consistently applying these policies.

It is important to remember that equality and diversity does not only just apply to gender and pay though – there are nine protected characteristics that are covered by legislation. Recognition of the issues facing the LGBTQ community at work is increasing, and we’re expecting employers to face more issues where they fail to account of this within their equality and diversity policies.

The charity Stonewall recently named the top LGBTQIA employers for inclusivity in the workplace. For the most part these are larger employers, with the budget and resources to make the necessary changes to their businesses, to cater for a diverse workforce. For smaller businesses though, there are still simple steps you can take to ensure your business remains inclusive for all – ensuring you have policies and processes in your handbook that are current and up to date and ensuring they are fit for purpose and applying them consistently when issues arise.

As the recent Ted Baker ‘hugging’ case shows, simply having a policy is not enough, it needs to be applied consistently in order to be effective.

What’s clear is that employees are becoming much more vocal and feel less restrained in calling out practices they disagree with and employers need to be prepared to deal with this.

Employers should consider the following cultural changes to ensure their policies are effective and not just paying lip service to the legislation:

• clear policies setting out what is acceptable practice and what is not tolerated;
• keeping equality policies up to date with newly published guidance;
• training staff on your policies;
• encouraging staff to make others aware when behaviour is inappropriate and having an effective complaint procedure; and
• creating a culture that fosters good standards of behaviour and accountability.

Equality hasn’t changed, but society’s expectations have. In the increasingly litigious world we’re now in, employers have to be much more proactive in addressing issues when they arise and ideally in preventing them in the first instance. Being clear in your expectations from the outset and consistent in enforcing them is critical. When serious issues do arise, we recommend you seek expert legal advice to ensure that you are able to successfully manage the situation and minimise the negative impact for your business.

Pam Loch is Managing Director of the Loch Associates Group and Managing Partner of Loch Employment Law. To contact Pam, visit www.lochassociates.co.uk or call 0203 6675 400.