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Equal Opportunities or Diversity?
These are terms on which even HR professionals can be unclear; indeed the latter has different definitions depending on the source chosen. If you look at the Chartered Institute of Personnel and Development (CIPD) site then, in my view at least, diversity is simply good management. The emphasis is on managing and developing individuals and recognising the differing contributions they may make.
There are some good examples of how this can work. For example, the German Software company SAP recently announced that it was seeking to recruit people with autism, recognising they had unique skills for Information Technology.
Our own personal prejudices can be a barrier. Anyone who saw blind pianist Nobuyuki Tsuji led onto the stage at the BBC Proms could be forgiven for wondering what they were about to witness. Once he started playing he was inspiring.
Diversity is important to businesses because employees in inclusive businesses perform better and the businesses can attack more diverse markets. Failing to embrace diversity is simply missing opportunities. The cost of lost opportunity will not be easy to establish but it will almost certainly be there.
The CIPD site has lots of valuable information about diversity on its website and is well worth viewing (you may need to register).
Equal opportunities is related to diversity and it provides a legal backdrop to avoid, or at least limit, discrimination. Nine individual “protected” characteristics are defined including age, disability, gender and race. Discrimination against individuals on the basis of these characteristics can take a number of forms. It can be direct (not promoting someone because of their race), harassment (e.g. using abusive language) or even just via perception (e.g. if someone is thought to be gay – even if they are not).
As well as the protected characteristics, there are also a number of other forms of protection for particular groups, trade union membership (or non membership), part-time workers and agency workers for example.
Equal opportunities legislation poses different issues for employers. Employment Tribunal claims for discrimination may be less common than for unfair dismissal but they are invariably complex. This means, typically, several days in an Employment Tribunal. Also contrary to an unfair dismissal claim it can fall on the employer to show that they have not discriminated. It is invariably harder to prove that you have not done something than to prove that you have! Where discrimination is established, Tribunals can make a compensatory award and, where the Equality Act applies, a further award for injury to feelings. These are not the type of claim an employer wants to face.
So what can be done?
The starting point, unsurprisingly, is an equal opportunity and diversity policy. However, that will not in itself make you an Equal Opportunities or Diversity employer. There are actions you should take to make your policy effective.
Employees need to be informed, to know what is expected of them. Providing a training course gives employees an opportunity to air their views (political correctness has its opponents), to test out what may or may not be acceptable and for the employer to communicate expectations. For new employees, training should form part of their induction.
Employers are responsible for the acts of their employees. Hence the importance of training employees so they do not carry out acts of harassment, victimisation or any other form of unlawful discrimination.
While the employer remains responsible for its employees, employees too can be sued for discrimination. It may be valuable to remind them of this.
Recruitment and selection
This is an area where you are most vulnerable since applicants as well, as employees, are protected from discrimination. Some organisations go to the extent of having any clues as to an applicant’s protected characteristics removed from the application form before it is considered by the shortlisting or interview panel. In practice it can be difficult to exclude everything and, unless you feel your organisation is under particular threat, not really necessary.
However, it is important to make sure your person specification (and hence selection criteria) are closely defined and do not discriminate on any protected characteristic.
A simple table, where your selection criteria are headings to the columns, and candidates are assigned to rows, can help to demonstrate the reasoning behind short-listing or other selection decisions. Each candidate can be ranked or marked against each selection criterion and the process aids the selection.
A similar process can aid, and demonstrate fairness in, selection for promotion.
Interviews are a risk area though. Questions that can be deemed to be discriminatory need to be avoided. It is OK to ask all candidates if they can attend work reliably and on time but discriminatory to ask only some candidates or to enquire about childcare arrangements.
Interviews, although de rigueur in the UK, are not the most effective selection process. It is good practice to also use other approaches, such as psychometric testing.
Discipline and grievance
Following the ACAS code of practice in these circumstances is always advisable, but becomes critical if there is any risk of a discrimination claim.
This is another potentially vulnerable area. Selection criteria are needed for redundancy purposes and, again, care is needed to ensure they do not discriminate on any protected characteristic. For example, the popular basis of “last in, first out” may discriminate on age grounds because long serving employees are likely to be older than shorter serving employees. Such a basis should never be used as the sole basis of selection.
Don’t forget post termination
It is worth remembering that a discrimination claim can be brought because of actions you take even after the employee has left. A reference can be discriminatory in content and even the refusal to provide a reference (for an employee who sought to assert a statutory right for example) might be victimisation – and hence unlawful and lead to a Tribunal award.
Looking back at the two concepts, it may be that, because of the serious implications of discrimination claims in Employment Tribunal, the actually more profitable concept of diversity tends to get overlooked. Indeed there is even the potential for conflict, as reflecting the unique contribution of an individual could in some circumstances be seen as discriminatory.
Ultimately, employers need to think about good management practices, sound job criteria and selection on true merit. Making sure employees feel they are treated fairly, as well as treating them fairly, is the best protection against claims and may offer the most potential for profit.
Malcolm Martin – QCS Expert Contributor on Human Resources
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