Tag Archives: Equality Act

“Why won’t Rangers sign a Catholic?”

“Why won’t Rangers sign a Catholic?”

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Is it possible to have a blanket ban on employing people from a particular country? That question came up last week when it was reported that Indian owned franchises in Cricket’s summer tournament The Hundred would not recruit Pakistani players due to the ongoing political tensions between the two countries.

Under the Equality Act, it is not allowed to discriminate on ‘colour, nationality, or ethnic or national origins”. And as UK employers, the different teams are bound by UK employment law. So how can the alleged ban be legal?

UK employment law protects anyone eligible to work in the UK – this includes not only UK citizens, but citizens of Ireland, anyone with ‘indefinite leave to remain’ and anyone working here with a valid work visa. Sportspeople in the UK are employees like anyone else and are normally here on International Sportsperson Visas.

When it comes to recruitment, an employer is not obliged to consider candidates who are not eligible to work in the UK and they are not required to advertise in any specific location. So in that sense, cricket teams in the UK are not required to consider players from any country. However, The Hundred operates on an ‘auction’ system where players apply centrally and the different teams bid for the players they want. It’s been reported that a number of Pakistani players have put their names into the auction, so they are in effect job applicants who need to be treated in the same way as applicants from Australia, South Africa, West Indies etc.

In practice, this is all a theoretical argument. It is very difficult, if not impossible, for someone who is not eligible to work in the UK to make a claim via an Employment Tribunal. And even if they could, it would be open to a team to defend an individual claim on the basis that the player didn’t have the right skill set (they were a batter and the team wanted a fast bowler for example). If the player in question was a British player of Pakistani heritage, or someone with dual British/Pakistani nationality, the issue might be different however.

It’s a very unwise step to have a blanket ban on people of a specific nationality and doubly so for it to become widely known. Even if the teams in question can get away with it legally (which they probably can) there is the ethical question – especially in a sport which has faced serious accusations of racism in recent years. As the old saying goes “it takes 20 years to build a reputation and 5 minutes to destroy it”.

For younger readers, the title of this post refers to a blanket ban that Rangers FC in Glasgow had against employing Roman Catholics or signing Catholic players – a policy which was only ended, to some controversy, as recently as 1989.

A cricket match in progress featuring players in purple and black uniforms on a grassy field, with a stadium filled with spectators in the background.
The Law Trumps Soundbites

The Law Trumps Soundbites

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There’s been a lot of noise over the last few weeks, mainly as a result of actions of the new American president, about Diversity, Equality and Inclusion (DEI) programmes within business. It’s been compounded by some American business leaders talking about the need for more “masculine energy” in business (whatever that term means).

Even though the cultural and business contexts of the UK and the US are different, this hasn’t stopped much chatter amongst business commentators here about the future of DEI. So it’s probably worth going over what the situation is here, especially from the perspective of small business.

Firstly, outside of some public sector organisations and some very large corporates – often subsidiaries of US companies –  very few companies in the UK have DEI programmes in the US style.

What we do have in the UK though is the Equality Act 2010.  This hasn’t changed, isn’t going to change in the next 5 years at least, and sets down the basis under which all UK businesses have to act.

This Act makes it explicit that you cannot discriminate on the basis of a one of 9 “protected characteristics” (with some very limited exceptions). Every single person in the UK possesses at least two of these protected characteristics (most have more) so it covers everyone.

Discrimination can result in unlimited fines – and unlike most aspects of employment law, claims can be made against individuals as well as businesses.

Discrimination applies equally to so-called ‘positive discrimination’ – for example deliberately favouring a female candidate in preference to a man (because you think your business needs more female staff) is as forbidden as the reverse. In fact there have been recent employment tribunal cases that have reaffirmed this.

What the law does allow – on an entirely voluntary basis – is ‘positive action’.  You might for example run an engineering company where all your engineers are of a certain age group and you are struggling to find younger candidates interested in the job. Positive action might be running taster days for young engineers, or attending careers fairs aimed at school leavers or recent graduates. It doesn’t mean that a younger person is going to get the job ahead of an older person, simply that you are creating opportunities for younger people to meet your requirements. Which, if you are struggling for staff, is a business benefit. Some larger companies might run training schemes targeted specifically at under-represented groups – again this is perfectly permissible. None of this is new – firms have been doing this since the 1980s.

Regardless of your own views on DEI, or what you have read on social media or heard on the news, the situation in the UK hasn’t changed. There is no such thing as a ‘diversity hire’ in the UK, nor can you start advertising for ‘young men’ or rejecting candidates because of their race or religion.

Cricket, lovely cricket?

Cricket, lovely cricket?

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One of the most difficult situations a business – small or large – can face is when an employee, or ex-employee, makes an allegation of discrimination. The natural, and understandable, reaction of many is to become defensive – but as the recent coverage of the issues raised by former cricketer Azeem Rafiq about Yorkshire Cricket Club have shown, it’s possible for an organisation to make a bad situation far worse. As one MP said, Yorkshire’s response to the allegations was a “Venn diagram of stupidity.”

I’m not going to comment on the Yorkshire situation (plenty of others have done that) but there are some key learning points for all companies to try to avoid the club’s many mistakes

  • Take any allegation seriously. If someone feels strongly enough to raise a formal complaint about racism/sexism or any other discriminatory behaviour, then you have a duty to follow it up, no matter how uncomfortable it might be.
  • If possible, have the allegations investigated independently. But don’t bring in lawyers to do it – approaching the issue as a way of avoiding tribunal claims or other litigation automatically means that the investigation is skewed.
  • Equally, don’t treat it as an exercise in reputation management. The role of an investigation is to decide if there is any substance to the allegations and make recommendations on how to resolve the situation, not to protect your business when it may have done something wrong
  • Don’t just make it about individuals. While in some cases the ‘rogue employee’ defence may be true, it’s unusual that they will have been able to get away with discriminatory behaviour unless others have tolerated or ignored it. As Azeem Rafiq pointed out in relation to events that happened in the presence of England captain Joe Root “Maybe he didn’t remember it, but it just shows the institution that a good man like him cannot remember those things” (my emphasis)
  • Don’t allow your own view of incidents to take precedence. It is sometimes suggested that  an individual is being ‘over-sensitive’ and if this is genuinely the case then there may be little substance to the allegations.  But what is ‘over-sensitive’ to you may be the culmination of a series of micro-aggressions to the individual – things which individually are not worth mentioning but which cumulatively result in a perception of discriminatory behaviour. This powerful video makes the point very effectively.
  • Take action on the findings – don’t brush them under the carpet. And this doesn’t just mean ‘sacking a perpetrator’ if deeper organisational issues are revealed.

Not dealing with matters invariably makes the situation far worse. And while your organisation may not end up all over the media or having to justify its actions to MPs, rest assured that the long term damage to it may be just as bad.

My thanks to Business Coach and Organisational Culture Specialist Lorna Leeson (@reallornaleeson) for some of the ideas and points featured in this post.

It’s a mixed up, muddled up, shook up world?

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At the start of 2020 (when a new virus affecting people in parts of China was hardly being covered in the news) I published a blog post on the issues of philosophical belief and how employers should consider issues relating to it, in the light of two high profile cases. on veganism and gender-critical beliefs.

The Employment Appeal Tribunal (EAT) has ruled today on the appeal in the gender-critical case. That case originally failed on the grounds that the claimant’s gender-critical beliefs could not count as a philosophical belief on the basis that they failed the 5th legal test, that a belief “must be worthy of respect in a democratic society and not be incompatible with human dignity or in conflict with the fundamental rights of others”

The EAT overturned this view, stating that a belief would only fail the 5th test if it was ‘akin to Nazism or totalitarianism’ or espousing violence and hatred ‘in the gravest of forms’; a belief that simply was ‘offensive, shocking or even disturbing to others…would not be excluded from the protection’.

This is a subject which results in much heated and vitriolic debate, particularly on social media platforms. The purpose of this post is not to discuss the merits of these views (or the decision itself) but to highlight to employers a key part of the judgement. The EAT was very clear and explicit that:

a. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.


b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of {Equality Act] EqA will be for a tribunal to determine in a given case.


c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.


d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

The above points are taken directly from the judgement (which you can find here if you want to read it in full) – they are also evidence that court judgements aren’t always in impenetrable legalese! They are however a very useful reminder that discrimination, bullying or harassment are something which an employer is liable for regardless of whether the alleged harasser claims they are only doing so because they have a particular religious or philosophical belief.

Woolly Bully

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Workplace bullying is back in the news in the UK, so I thought it might be helpful to outline the position for small businesses.

Bullying isn’t defined in employment law, although harassment is (section 26 of the Equality Act) – harassment being ‘unwanted conduct that…violates someone’s dignity…or creates an intimidating, hostile, degrading, humiliating or offensive environment” for an individual (my emphasis). Although this definition of harassment relates specifically to the protected characteristics under the Act, it does form the basis for many organisations’ policies on conduct for all staff.

In practice, bullying is often considered to be harassment by someone in a position of power over the individual – such as a boss.

Bullying can take many forms, but some I’ve encountered in my working life include

  • Giving impossible targets for a subordinate  – setting someone up to fail
  • Making public derogatory comments about a more junior member of staff, either when they are present or to other team members in their absence
  • Shouting, swearing or other verbally aggressive behaviour.
  • Micromanaging an individual, picking up every slight error
  • Treating an individual differently (for example enforcing applying a strict lunchbreak when others are allowed to take as long as they like).

It’s important to remember that both the Equality Act and case law have made it clear that it is the perception of the individual, not the intention of the alleged bully that is what counts – so “I didn’t mean it” is not an excuse for unacceptable behaviour, although it may be a mitigation for any penalty given (something I have discussed before).

Other excuses that won’t wash include “I just have high standards and expect everyone to conform to them” (you can have high standards without being aggressive towards your subordinates) “X is not up to the job” (performance management is about being supportive and agreeing clear targets) or “I’m just a woman operating in a man’s world, so I need to show I’m strong and decisive” (a poor culture doesn’t excuse your bad behaviour)

Of course, this doesn’t mean automatic dismissal for someone found to be bullying their subordinates – an employer is expected to make a reasonable decision considering all the circumstances of the situation. So a manager who hadn’t realised the effect their actions were having on their team members might be given a warning. It’s for you to decide. But you also need to consider the impact that not dealing with a bully will have on, not just on the individual who has raised the concern but on the rest of your workforce.

Bullying allegations can be difficult for small businesses to deal with, especially if the person accused is one of your key managers. But failing to act can lead to more negative consequences.