Discrimination Against Future Workers – How An Employer’s Current Behaviour Could Have Future Repercussions

It’s unlawful for employers to discriminate against their workers for reasons including race, sex, sexual orientation and more – under the Equality Act 2010. However, according to an ACAS report, the number of claims for discrimination, particularly relating to race, has risen significantly in the past year.

A recent case highlighted what could happen if public statements made by an employer are discriminatory, and how this could affect individuals later employed by that company. Below, we have provided a summary of the case and outlined what employers need to do to prevent discrimination.

Case summary

In the case of NH v Associazione Avvocatura per i diritti LGBTI, a senior lawyer at an Italian law firm remarked that he would not wish to employ or work with LGBTQ+ people during a radio interview. At the time that the comments were made, the firm was not recruiting and it did not receive any complaints.

However, an association for LGBTQ+ lawyers brought a claim of unlawful discrimination under the Equal Treatment Framework Directive 2000/78, which was referred to the European Court of Justice (ECJ) by the Italian Supreme Court.

Even though the law firm was not actively recruiting at the time that the remarks were made, the ECJ found that the status of the person making the remarks, and the capacity in which they were made, were such that the person was a potential employer or was capable of exerting a decisive influence on recruitment policy or perceived recruitment decisions. Therefore, such remarks would be capable of hindering access to employment and might discourage persons belonging to the protected group from applying for employment.

What impact has this judgment had on discrimination claims in the UK?

As the Equal Treatment Framework Directive is implemented in the UK by the Equality Act 2010, this judgment has widened the scope under which discrimination claims can be brought in the UK with the possibility that general public statements could be translated back to an organisation’s recruitment policies and practices.

It is crucial that employers tackle any prejudices that their staff might have and make sure that staff are trained on, and appreciate the importance of, equal opportunities within the workplace.

Ensure policies and training are fit for purpose

Many employers are well aware of the benefits a diverse workforce and inclusive culture can have, and while a large proportion of employers reviewed their approach to diversity in light of Black Lives Matter, it’s vital to ensure that this is reviewed regularly so that equality policies and training frameworks are up to date.

Employers are often held liable for their employees and managers who discriminate or harass colleagues. Therefore, it is essential that employers regularly review policies and that staff are aware and trained regularly on diversity issues. For any employee experiencing or concerned about discrimination, their first port of call is likely to be the company’s equality or equal opportunities policy as well as a grievance policy and any other method the company has for employees to raise concerns if they feel they are being treated unfairly.

Act quickly

It’s common to see employers inadvertently aggravating an employee’s concerns by failing to handle complaints about discrimination sensitively, appropriately and promptly. Therefore, we would always recommend that employers seek legal advice at the earliest opportunity when dealing with a grievance of this kind.