The Women and Equalities Committee recently published a report on the gendered impact of coronavirus, which found that the economic impact of coronavirus has affected men and women differently, including in the workplace. From reports of pregnancy and maternity discrimination to an increase in the gender gap in childcare responsibilities, the report found that existing inequalities have been exacerbated by the pandemic response.
In light of these findings, have you taken the time to consider whether your business is properly addressing equality and discrimination issues in your workplace?
If not, this International Women’s Day on 8th March might be an appropriate time for you to take stock and join the mission to forge inclusive work cultures where women’s careers can thrive.
As a starting point, women have important legal protections in the workplace and employers must make sure that these are complied with. There are also additional HR policies and procedures that your business could put in place to help women overcome potential challenges and barriers to their progression.
The business benefits of building a culture of inclusivity and championing equality are clear; not only can it help to boost productivity, innovation and morale amongst your workforce, but it will also help you to avoid the potentially costly ramifications of getting things wrong.
In this employer’s guide, we highlight some key issues to be aware of and steps you can take to make sure you’re supporting gender equality in your workplace.
The right to equal pay
Equal pay issues hit the press numerous times last year thanks to several high profile cases, proving that getting it wrong can be costly.
So what do you need to know?
In a nutshell, women and men have the legal right to be paid equally for equal work, and pay includes not only wages but also benefits packages. Men and women don’t need to be doing identical work for the rule to apply; provided that the work they are doing is either similar, rated as equivalent or is of equal value, they must receive equal pay. The only reason for not paying men and women equal pay for equal work is if you have a genuine, material factor other than gender to justify it (eg because the male employee is more qualified or works in a different location where the cost of living is higher).
Make sure you’re not short-changing your staff. Read our guidance on Staff pay for more information about equal pay.
The right not to be discriminated against
What is discrimination?
Discrimination occurs when a staff member is treated less favourably because of a protected characteristic (eg sex, race, disability, gender reassignment, religion or pregnancy).
It can either be direct (eg they are not offered a promotion because they are a woman) or indirect. Indirect discrimination can occur if one of your business’s practices or policies puts a staff member at a disadvantage because of any of their protected characteristics and you cannot justify it properly (eg if you specify that a role is full-time in a job description when it could actually be performed part-time or as a job share, you may indirectly discriminate against women who are more likely to need the flexibility due to childcare responsibilities).
What is harassment?
Harassment occurs when a staff member is subjected to unwanted behaviour on the basis of a protected characteristic (eg because they are a woman) that makes them feel intimidated, degraded, humiliated or offended. Sexual harassment occurs when the unwanted conduct is of a sexual nature.
How can you prevent staff being discriminated against or harassed?
You are under a legal obligation not to discriminate against or harass your staff or job applicants. Importantly, your business can also be held responsible for acts of discrimination or harassment by your staff during the course of their employment, but you may have a defence to such claims if you can show that you took all reasonable steps to prevent that act occurring (eg by putting in place appropriate policies and procedures to set out what is and is not acceptable behaviour).
Taking the following steps will help to get you on the right track:
1. Put in place an equal opportunities policy
It’s best practice to put in place an equal opportunities policy. This should set out your business’s commitment to treating all staff and job applicants equally and prohibiting your staff from acts of unlawful discrimination whilst at work. Our staff handbook has a template you can generate as a standalone policy or as part of a handbook.
2. Put in place an anti-bullying and harassment policy
It’s best practice to put in place an anti-bullying and harassment policy. This should set out your business’s approach to bullying and harassment in the workplace and how you will deal with any complaints that are made. It should set out what behaviours constitute bullying and harassment, including sexual harassment, and how complaints will be dealt with.
Our staff handbook has a template you can generate on its own or as part of a handbook.
3. Provide your staff with equality and diversity training
It’s important to provide your staff with equality and diversity training. Not only will this help to ensure that they understand your policies and procedures, but it will also help you demonstrate that you have taken all reasonable steps to prevent discrimination occurring in the workplace.
Need to set up a training programme? ACAS offers free eLearning modules.
Equality and diversity training should not be a box ticking exercise, but it should be comprehensive and refreshed at appropriate intervals. Your policies and procedures should also be kept under review and updated as required.
4. Be alive to issues of discrimination and unconscious bias at every stage of the employment relationship
From hiring a new member of staff, to offering development opportunities, and right through to letting a staff member go, you should be alive to potential discrimination or unconscious bias issues every step of the way. For example, when considering staff for a promotion, you must be careful not to exclude women with flexible working arrangements; this could be considered indirect sex discrimination (eg if the reason they require flexible working is to accommodate childcare arrangements).
Putting in place clear and transparent procedures, keeping records of why decisions were made and setting the tone from the top will help to ensure that you act fairly, reduce bias in the workplace and create an inclusive culture. Many businesses also choose to monitor equality and diversity during their recruitment processes to keep equality of opportunity under review.
Pregnancy and maternity protections
After the Government recently expedited a Bill to give cabinet ministers formal paid maternity leave for the first time, maternity rights have come under the spotlight. Your employees might have different entitlements to cabinet ministers, but it’s important that you understand what those rights are and ensure that they are protected.
When it comes to pregnancy and maternity protections, there are certain legal minimum standards that you must ensure that you comply with. It is then open to you to go above and beyond what is legally required (eg by putting in place enhanced family leave and pay packages) to further support your staff.
As a starting point, find out if you’re already complying with the legal minimum with this quick checklist:
✅ Employers must carry out a risk assessment to ensure they have created a safe working environment for pregnant and breastfeeding staff
✅ Employers must allow employees time off for antenatal appointments
✅ Employers must allow employees to take maternity leave and in some cases they must pay employees on maternity leave statutory maternity pay
✅ Employers must allow employees to return to work after their maternity leave ends (provided certain conditions are met)
✅ Employers must allow eligible women to share a portion of their maternity or adoption leave with their partner (known as shared parental leave)
❌ Employers must not discriminate against any staff because they are pregnant or on maternity leave
For more detailed guidance about all of these rights and obligations, see our Q&A on pregnancy, maternity and adoption and Shared parental leave and pay.
Don’t forget that you’re legally required to provide employees and casual workers with written details about any paid leave that they’re entitled to (including paid maternity leave) on or before their first day of work with you. It’s best practice to either provide this information in their contracts or to refer them to a separate maternity leave policy (eg in your staff handbook).
The right to flexible working
Some of your staff may have the right to make a formal request for flexible working (eg if they are employees or apprentices with at least 26 weeks’ continuous service) and you are under certain legal obligations as to how you deal with such requests (eg you can only reject it for one or more of eight specific reasons).
Whether or not they are made formally or informally, you must be careful not to discriminate when you are dealing with flexible working requests, many of which may come from staff with childcare responsibilities. To avoid discrimination issues arising, you should make sure you properly consider whether you can accommodate all requests for flexible working, rather than dismissing them straight off the bat. For example, if an employee returning from maternity leave requests a job share, you should weigh up the benefits to your employee when investigating whether it will work in practice, and consider whether you could recruit someone to take on the other half of the role.
Putting in place a flexible working policy can help you to transparently set out your business’s process for dealing with flexible working requests, to help you deal with them consistently and fairly.
And finally… mind the gap!
According to the Office for National Statistics, in 2019, the gender pay gap (ie the difference between the average earnings of men and women) stood at 17.3%. This means that for every £1 earned by men, women were paid approximately 83p. If you have identified a gender pay gap within your business, it’s important that you take the time to identify why it exists and take action to address it. The Government has published guidance on actions that are likely to reduce the gender pay gap.
Employers with over 250 employees, casual workers or apprentices have to report their average pay for male and female staff every 12 months. However, due to the pandemic, enforcement of gender pay gap reporting was suspended last year and has been postponed for 6 months this year. If the rules apply to you, you must report your information for 2020/21 by 5 October 2021.
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Before joining Sparqa Legal as a Senior Legal Editor in 2017, Frankie spent five years training and practising as a corporate disputes and investigations lawyer at leading international law firm Hogan Lovells. As legal insights lead, Frankie regularly contributes to Sparqa Legal’s blog, writing content across employment law, data protection, disputes and more.