A recent report from the Commons Women and Equality Committee calls for the burden of proof in discrimination cases to shift from the individual to the employer would mark a step change in employee relations, but it is one that is in tune with the times and should be welcomed.
The Commitee started this inquiry with a sense from work over the past four years that, for equalities legislation to be more effective, the burden of enforcement needed to shift away from the individual facing discrimination.
This inquiry has confirmed that not only is this burden too high, but that that the individual approach to enforcement of the Equality Act 2010, and its predecessors going back to the 1960s and 70s, is not fit for purpose.
While individuals must still have the right to challenge discrimination in the courts, the system of enforcement should ensure that this is only rarely needed. This requires a fundamental shift in the way that enforcement of the Equality Act is thought about and applied. They want to see a model that can act as a sustainable deterrent to achieve system-wide change that tackles institutional and systemic discrimination.
Challenges concerning discrimination
The report aims to develop a ‘critical mass’ of cases to inform employers and organisations about their legal duties and make adherence to existing equality law a priority for all organisations.
This is a move away from the current model of using individual litigation to create precedents; making obligations on employers, public authorities and service providers explicit and enforceable; and ensuring that all who have powers to change the way in which employers, public bodies and service providers operate use those powers to eliminate discrimination and to advance equality.
If their current mandate limits their ability to do this, then the Government must legislate to remove this limitation. While some employers will see this as unwelcome interference, the reality is that without the burden of proof shifting to the employer, some companies will never take this seriously and act.
Too many employers still see HR as a reactive organisational process rather than a proactive tool to help motivate, develop and retain their people, as well as ensuring compliance with the letter and spirit of equality laws.
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Future of employers
Should the recommendations in this report become law it will accelerate a process that is already underway to professionalise HR across UK organisations. Employers need to ensure they have the right processes and procedures in place from the moment they issue a job advert, to the moment that an employee leaves the business. Every appraisal and job description change needs to be part of a process that helps build talent and ensure equality throughout an organisation.
Andrew Weir Head of Employee Relations and Advocacy at Moorepay commented:
“While some companies will despair about how they deliver this level of detail, the reality is that much can be done using technology to help standardise HR systems and processes. This isn’t about turning HR into a robotic one-size-fits-all process, but about ensuring a foundation of fairness that allows all staff to be treated equally and have equal opportunities to excel, and build their careers.
“If implemented well, this process will save companies time, money and the emotional drain of legal and tribunal cases. It also provides a better way of doing business and a fair and decent working environment.”
>See also: Study finds diverse members of the tech sector experience discrimination and stress