7 minute read • published in partnership with Make UK
Insight: Navigating equality, diversity and inclusion (EDI) employment tribunal claims in the manufacturing sector
In today’s increasingly diverse society, the promotion of equality, diversity, and inclusion (EDI) in the workplace is crucial. However, even where employers take active steps to foster a fair and respectful working environment, issues related to EDI can still arise and lead to disputes. When such disputes cannot be resolved internally, employers can find themselves facing employment tribunal claims, which can be time consuming and costly to defend.
Felicity Staff, Senior Legal Adviser at Make UK explores the EDI landscape within the manufacturing sector, outlining the types of EDI-related issues that can lead to employment tribunal claims, and steps HR can take to reduce risk and handle any disputes that arise.
Understanding EDI in manufacturing
Equality, diversity, and inclusion are fundamental principles that underpin a healthy and thriving workplace culture. In the context of the manufacturing sector, which employs a diverse workforce spanning a wide range of different backgrounds (for example, those of different ages, genders, racial and ethnic origins, religions, sexual orientations and abilities), upholding EDI principles is essential for developing a positive work environment. It is also important for maintaining a strong brand. Consumers expect the businesses from whom they purchase goods to uphold key values of fairness, inclusion and respect, and failure to do so can have significant costs from both a legal and reputational perspective.
Picture: Getty/iStock
Common issues leading to EDI employment tribunals
In our experience, the following issues commonly lead to EDI-related disputes in the manufacturing sector:
1 – Discrimination – Allegations of discrimination based on ‘protected characteristics’ (such as race, sex, gender reassignment, age, disability, religion or belief, pregnancy and maternity, or sexual orientation) can arise in recruitment, promotion, training, and/or termination processes. A claim for direct discrimination will arise where someone with a protected characteristic is treated less favourably than others. Indirect discrimination arises where an employer puts rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at a particular disadvantage compared to those without that characteristic (if the rules or arrangements cannot be objectively justified). Employers can face particular difficulties where there is a need to balance the competing rights of employees in the workplace, for example where the rights of transgender employees conflict with those of other employees with religious and/or gender critical beliefs. It is important for HR to manage these types of situations carefully, to minimise the likelihood of issues escalating to a tribunal and reduce the employer’s exposure if they do.
2 – Failure to make reasonable adjustments – Employers have a legal obligation to make reasonable adjustments to support employees with disabilities, and failure to do so can lead to tribunal claims. EDI issues such as mental health and menopause awareness are coming under increasing focus in the workplace and can lead to tribunal claims where employers fail to provide the necessary level of support to protect employees’ health, safety and wellbeing. Stress, anxiety and/or or depression have the potential to relate or amount to a condition falling within the Equality Act’s definition of disability and, although menopause itself is not a protected characteristic under the Equality Act, employees experiencing the menopause may be able to bring discrimination claims relying on the protected characteristics of age, sex and/or disability.
3 – Harassment and bullying – Under the Equality Act 2010, there are three types of harassment: harassment related to certain ‘protected characteristics’; sexual harassment; and less favourable treatment as a result of a person’s rejection of or submission to sexual harassment. Failure to tackle instances of harassment and bullying in the workplace can have a hugely negative impact on employee wellbeing and staff retention, as well as potentially resulting in tribunal claims. Note too that, from 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will place a new duty on employers to take reasonable steps to prevent sexual harassment at work. This new duty on employers will be enforceable by the Equality and Human Rights Commission, and employment tribunals will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has breached the duty.
4 – Unequal treatment – Disparities in pay, benefits, opportunities for advancement, or access to training and development based on EDI factors can result in claims of unfair treatment. For example, over recent years several large retailers have faced well-publicised, lengthy and complex equal pay claims from female store workers who have argued that they should be paid the same as warehouse operatives in the distribution centres (who are primarily male).
5 – Victimisation – The law protects employees who have done or intend to do a “protected act”, such as raising concerns about EDI issues or participating in tribunal proceedings (for example, acting as a witness in support of a colleague’s employment tribunal claim). It is important that employers remain alert to the risks of victimisation claims and tread carefully when dealing with complaints from employees.
Picture: Getty/iStock
Avoiding and handling EDI-related claims
There are various proactive measures employers in the manufacturing sector should take to mitigate against the risk of EDI-related tribunal cases and ensure they are best placed to handle any claims effectively if they do arise:
1 – Establish clear HR policies – it is important to put in place comprehensive HR policies outlining what you expect from your workforce in relation to EDI matters, procedures for reporting grievances, and the potential consequences of violating company policies (particularly those relating to EDI). You should regularly review your policies to make sure they remain up-to-date, and keep abreast of legislative developments (such as the introduction of statutory carer’s leave, extra redundancy protections during pregnancy and following family related leave, and changes to the statutory flexible working and paternity leave regimes).
2 – Provide thorough training – offer regular training to employees and managers on EDI awareness, including unconscious bias, the importance of respectful communication, and the reporting and efficient handling of complaints. It is vital that managers know what their company policies say and how to apply them in practice, including in their wider decision-making, such as in the context of dismissals. In the case of Hilton Foods Solutions v Wright, for example, Hilton Foods (which prepares and supplies meat products) faced an automatic unfair dismissal claim from an employee who argued that the real reason for his dismissal was that he had sought to take parental leave. In light of this case, managers should be reminded that communications about taking family-related leave should not be a factor in dismissing someone, or taking any other form of detrimental action.
3 – Conduct fair investigations – it is vital that you investigate any complaints or concerns relating to EDI issues promptly and impartially and that those involved understand the importance of confidentiality and sensitivity throughout the process.
4 – Consult legal experts – make sure you understand your legal obligations, including best practice within your sector. Seek guidance from employment law specialists where needed to ensure EDI compliance.
5 – Consider mediation – in appropriate cases, alternative dispute resolution methods such as mediation or conciliation can help to resolve EDI disputes swiftly and amicably, avoiding costly tribunal proceedings.
Listen to a Make UK podcast here: Jonty Bloom, former Business Correspondent, BBC Journalist and Presenter, discusses with Sara Meyer (Principal Legal Adviser, Employment Law & HR, Make UK) why promoting equality, diversity and inclusion in the workplace is crucial.
EDI issues will not be the only source of employment tribunal claims that manufacturers may face. However, by addressing and preventing EDI-related disputes effectively, manufacturers can reduce their legal risk, ensure a positive organisational culture, enhance employee morale and productivity, and strengthen their reputation as socially responsible employers.
Picture: Getty/iStock
Horizon scanning
Finally, keep in mind that the new Labour Government intends to make various changes to employment law. The Government’s proposals (outlined in “Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People”) include: making the right to flexible working a default for all workers from day one (as opposed to the current “right to request” flexible working); removing what the Government calls “discriminatory age bands” which currently apply in relation to the national minimum wage; taking steps to tackle workplace harassment; and introducing measures to tackle the gender, ethnicity and disability pay gaps. The Government also plans to extend the time limits that apply for workers to bring employment tribunal claims (currently three months for most employment claims), meaning we are likely to see an increase in the volume of claims. The Government has committed to consulting with businesses in relation to many of its employment law plans, which will take time, but employers should nonetheless be mindful that significant changes to employment law are likely to lie ahead.
“EDI employment tribunals can take up a great deal of management time and may have significant cost and reputational implications. These risks underline the importance of taking active steps to promote fairness, respect and inclusivity in the workplace, as well as carefully managing any disputes that may arise to minimise a company’s potential exposure.”
Find out more about EDI here: Equality, Diversity and Inclusion Support