Hempsons in Print
The Equality Act 2010: Part 9 - Dentistry Magazine

Feb 2012

Published in Dentistry magazine 16.02.12 www.dentistry.co.uk

The penultimate article in a series on the Equality Act 2010 focuses on the discrimination issues which can arise and pitfalls for employers to avoid when terminating employment relationships.

The Equality Act offers protection to employees who are dismissed for discriminatory reasons.  As a result employers, regardless of their size, must be mindful of the way in which the Act could apply to dismissal situations, however they arise and utilise appropriate procedures/practices to minimise the potential for discrimination claims.

Conduct

In conduct dismissals employers could face challenges under the Act if there was inconsistent treatment of staff.  For example, if an employee with a protected characteristic received different (less favourable) treatment to another colleague without that protected characteristic who was equally culpable or whose situation was otherwise not materially different to the employee being dismissed. 

Employers who implement and adhere to a disciplinary policy (which should incorporate the terms of the ACAS Code of Practice) will reduce the risk of inconsistent approaches to misconduct and consequently discrimination claims arising.  In particular managers making disciplinary/dismissal decisions should be trained in the application of the policy and also understand the implications of the Act; thereby theoretically making those managers better equipped to explain the reasons for the decisions made and importantly any differences in treatment or need to deviate from the established policy or previous decisions.

Redundancy 

Employers must take care in redundancy situations to use objective selection criteria when identifying and scoring potentially redundant staff.  A mix of selection criteria is likely to reduce the risk of issues arising under the Act provided that the criteria used are objective and non-discriminatory (i.e. recent appraisal scores, meeting targets/objectives or other criteria which can be supported by evidence). 

Certain selection criteria should be avoided or used with care given the potential discriminatory impact.  For example, Last In First Out (LIFO) whilst straightforward and allowing employers to reward service and loyalty, may amount to indirect age discrimination against younger workers who have less service.  In addition, criteria such as “flexibility” whether measured against an individual’s ability to do particular tasks or work at different locations may amount to indirect sex or disability discrimination because women with childcare responsibilities and staff with disabilities may be less able to work flexibly than other colleagues without those protected characteristics. 

Selection criteria which could adversely impact upon disabled staff should be used with care as this will require employers to look at implementing reasonable adjustments in order to place disabled staff on a level playing field with non-disabled colleagues in the selection process.  For example, if sickness absence formed part of the selection process employers would have to give consideration to discounting or making appropriate allowances for disability-related absences. 

The next and final article in this series will focus on capability and retirement dismissals.

Author

Fiona McLellan
Partner
t: 020 7484 7522
e: f.mclellan@hempsons.co.uk
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