Companies with progressive culture will be well positioned to attract best recruits - Kim Pattullo

Recent allegations in sport (both in England and Scotland) have served once again to cast an uncomfortable spotlight on the issue of discrimination. Sadly, the media furore simply highlights that there is more to do to stamp out discrimination.

Kim Pattullo is joint head of employment law, Shoosmiths in Scotland

Bluntly, these latest allegations in sport underline that ‘banter’ and derogatory language and behaviour is unacceptable in society. Crucially, in the workplace environment managers must recognise their key role in combatting discrimination in all its forms.

Unfortunately, I have seen employment tribunal claims and grievances increase throughout the pandemic. Consequently, in my opinion, significant challenges remain for all businesses to effectively tackle discrimination.

New types of discrimination claims are appearing. The legal framework under the Equality Act 2010 hasn’t changed but the sub-categories are evolving as lawyers deal with new and challenging issues. For example, within disability discrimination, long-Covid will in some instances qualify as a disability. Although the legal test for assessing if an individual is disabled hasn’t changed, the types of medical conditions to be considered are evolving and in turn influence case law.

Looking ahead, I believe there will also be more sex and age discrimination claims as businesses wrestle with how best to make office, hybrid and home working practices work best for everyone. There’s an argument that employees who choose to step away from the workplace might be disadvantaged in terms of accessing the best quality work and opportunities for career progression. This could affect women with childcare responsibilities and in turn lead to sex discrimination claims against the employer.

There’s every likelihood age discrimination claims will increase at both ends of the working population. Evidence suggests a significant number of Millennials and Generation Z employees wish to work from home (at least part of the time). Meanwhile, the so-called ‘sandwich generation’, juggling work with responsibilities for elderly relatives and children, seek greater flexibility. In my experience, this scenario requires careful handling if employers wish to avoid being on the wrong side of a grievance or employment tribunal claim.

Significantly, this evolution of what constitutes discrimination in the modern workplace also comes at a time when the likes of the care, IT and logistics sectors are all trying to attract the best talent. Unsurprisingly, employees are currently in the stronger negotiating position.

This means there are very good reason to ensure all managers undertake refresher training in discrimination law. However, businesses engaged in the war for talent must also recognise they will recruit the best by offering an inclusive, progressive working culture. One that encourages talented managers to lead staff in different ways and helps every employee, working from home, hybrid or from the office to succeed in the business.

In the year ahead, I envisage employers with a strong track record in following Environmental, Social and Governance (ESG) criteria, and who robustly tackle the likes of gender pay gap issues will be well positioned to attract the best recruits.

For brevity, the following are key considerations for employers who wish to avoid or minimise incidences of discrimination in their workplace and to attract the best talent:

1. Provide refresher training for managers on discrimination and unconscious bias.

2. Equalities law is evolving so ensure everyone is cognisant of the new risks. This includes the possibility that employees with long-Covid may have a disability and therefore protection against discrimination. Each case will have to be considered on its facts. In these circumstances, are your managers equipped to recognise the possibility of a disability?

3. Be mindful there are significant numbers of employees who started new jobs during the pandemic. Ensure they understand the culture in your business.

4. Don’t adopt the ‘ostrich approach’ to complaints or grievances regarding discrimination. Better to meet the challenge than to be on the wrong end of a tribunal claim.

5. Encourage managers to consider how they can lead hybrid/home working teams in an inclusive way (in particular to avoid claims of sex and age discrimination).

Of course, in this new world of working, business owners are already grappling with a multitude of priorities and challenges. However, from an employment law perspective, those that take cognisance of the above steps will both position themselves as an employer of choice and retain their valued employees.

Kim Pattullo is joint head of employment law, Shoosmiths in Scotland