Equality of Opportunity 

Developing the policy is merely the first step in a continual process of promoting equality of opportunity. If you do not implement the policy then the commitments made in it are empty. In the event of a discrimination or harassment complaint, an industrial tribunal or the Fair Employment Tribunal may take the view that any failure by you to implement your policy is evidence of your failure to take such steps as were reasonably practicable to prevent your employees from committing acts of unlawful discrimination or harassment.

If you find yourself in this position you may find it difficult to establish a “reasonably practicable steps” defence in order to avoid legal liability for the discriminatory acts of your employees. But, on the other hand, if you can show that you effectively implemented your policy, then you will have a considerable advantage when it comes to defending a complaint. The following example illustrates this:

A –v- B & C   [Industrial Tribunal, 2003]

A woman had been sexually harassed by one of her co-workers at an office Christmas party. The tribunal held that the employer was not responsible for this incident. This was because the employer was able to show that it had taken such
steps as were reasonably practicable to prevent the incident from occurring. For example, the employer provided evidence that-

• all its employees, including the one whose conduct caused the harassment, had received equal opportunities training;
• that managers had received further equal opportunities training with an emphasis on their role as managers;
• that all staff had been provided with copies of the equal opportunities policy, which was an anti-harassment policy too, and with copies of revised versions of the policy whenever it was updated;
• that managers proactively intervened when they heard employees engage in inappropriate banter, on which occasions they spoke to them to warn of the dangers of such banter and to remind them of the terms of the equal opportunities policy;
• that in the run-up to the Christmas party season the employer circulated a memorandum to all employees which reminded them of the terms of the equal opportunities policy and specifically warned them to act appropriately during the party season;
• that the policy and memorandum described the kinds of behaviour that were unacceptable;
• that the policy and memorandum were discussed with employees on several occasions at staff meetings.

This case was concerned with the topic of harassment but its lessons can be applied to many other employment scenarios. For example, employees who sit on recruitment and selection panels should be provided with training that addresses equal opportunities issues in the context of recruitment and selection and they should be reminded of the content of the employer’s equal opportunities policy before participating in recruitment exercises. These same principles also apply to employees who manage or supervise other staff and who have duties in respect of dealing with requests for flexible working, or managing absenteeism.

A Joint Declaration of Protection is a document in which you state that you are both committed to promoting equality of opportunity, preventing discrimination and harassment and to promoting a good and harmonious working environment. The JDP can then be displayed on staff notice boards, intranets and in other prominent places within the workplace.

The Commission has drafted a Model Joint Declaration of Protection (click on hyperlink).  You may use this as a template for drafting your own Declaration, although they are free to make appropriate amendments to suit your own particular needs.