A fair enough share for all

From the start of this month, employees will have greater protection against discrimination, harassment and bullying. Employers will benefit too, with the Equality Act 2010's implementation the often confusing and piecemeal field of discrimination law will be simplified and streamlined.

Over the years, piecemeal additions have been made to the legislation surrounding the key characteristics of discrimination: race, sex (including cross and trans gender issues), sexual orientation, age, disability and religion or belief. Much of the Act is concerned with streamlining this, as well as ensuring each characteristic has all the protections available to it. However, the Act does make a few key changes from the previous legislation covering equality in the workforce.

The Act and hiring ​

Companies can now go for a candidate in a disproportionate minority in cases where there are two equally qualified candidates for the job. However positive discrimination is a potential minefield, as the US has learnt over the years, and it is unclear how much use companies will make of it.

Employment law expert at law firm Eversheds, Owen Warnock says: "Although that is a dramatic change, I think very few employers will make use of it because then you get into a debate about what is actually meant by equally qualified. Is there an exam? Do employers mean experience? Do they mean natural aptitude? None of which is defined by the legislation.

"So if I were an employer in that position and thinking: 'These two are equally good, I'll go for the person who is in the minority group because we haven't got many of them.' I'd probably make sure that in my next assessment of them I'd make them slightly better than the other person.

"I'm not advising employers to do that I'm just saying in the real world that's what I would expect HR managers to do rather than get into an elaborate debate about whether the people are equally qualified and they are therefore able to go for the under-represented person."

Director of human resources at the Food and Drink Federation (FDF), Angela Coleshill agrees: "Employers will need to exercise caution in recruitment as any positive discrimination could result in claims from unsuccessful applicants. This may lead to an argument that they are more qualified than the successful applicant and the employer therefore had no right positively to discriminate."

Changes during employment​

The Act also makes it illegal to treat an employee less favourably because they are perceived to belong to a group, whether or not they actually are part of that group.

"It particularly comes up in relation to harassment joking and teasing," says Warnock, adding: "Previously, if you harassed someone because you thought they had a particular sexual history and it turned out you were wrong on that, it might not be an offence."

How this will work in practice remains to be seen. Head of employment law at law firm Lewis Hymanson Small, Neeta Laing says: "It's always hard to show how someone is being discriminated against by perception.

"It will be down to the claimant to show through evidence that it is 'because my employer does not like that I'm a Muslim'. They'll do this by presenting evidence along the lines of saying: 'I heard him say to someone else 'I don't agree with that part of that religion'."

The Equality Act 2010 also increases the rights of employees for protection from discrimination by association.

Warnock says: "If, for example, you mistreat someone because they hang around with gay people, even if they are not gay themselves that still constitutes sexual discrimination."

As is the case with perception, this is another area of the law that will largely be down to evidence presented in individual situations and will be developed as cases emerge says Laing.

In the future​

The Equality Act 2010 also opens the door for future legislation with regards to discrimination. It paves the way for changes in a key issue, especially in the food and drink industry with its ageing workforce, the elimination of the default retirement age (DRA), which is to come into force during the course of 2011.

Employers will have until April to notify employees of compulsory retirement and must set a date earlier than October for the retirement. After that, compulsory retirement will be out, unless employers can prove the employee's age is detrimental to their ability to fulfil their job. And that Coleshill believes is a problem. She says: "Removing the DRA could increase the number of tribunal claims with the onus being placed on employers to prove whether older employees are capable of continuing in their current role. Inevitably, this could lead to claims from some older long-serving employees who have been dismissed rather than, as is often now the case, them being allowed to retire with dignity."

Ageing workers and the claim that everyone will have to work until they die have been large talking points in the more histrionic sections of the media and the Act puts this squarely into focus for food manufacturers.

Coleshill points out that in the future, manufacturers will have to make provisions for life assurance and medical cover for older employees. She adds that the short timetable gives employers little time to alter their policies and practices.

Coleshill also worries about the message the elimination of the DRA sends out. She says: "Manufacturers also need an explanation of what they feel are contradictory messages from the government. On the one hand, they are being encouraged to take on more young people to reduce the current high levels of youth unemployment. On the other hand, the government is making it more difficult for them to plan for changes in their workforce and create job opportunities by phasing out the DRA."

The Act also may eventually force employers with more than 250 employees to publish information about pay equality.

While this is not being directly brought in by the legislation, Warnock feels that it is a trend that will be promoted by various provisions in the Act. He believes that the public sector will start to look more closely at its suppliers and become more demanding of them to become more open and transparent in their disclosure of information.

Coleshill says that while the FDF is happy to support the government's initiatives to promote diversity in the workforce, ideas such as publishing data on pay is an unnecessarily administratively burdensome way to go about things. Despite this, the simplification of the legislation will prove a boon to companies in the long run, says Laing.

As for the employees that benefit from equality laws, the Act is another step in the right direction, even if there may be more paperwork on their desks.

Red meat industry beefs up on the job training​

A new training course has been launched for the red meat industry. The Meat Operations Management Postgraduate Diploma, in conjunction with Harper Adams College, Cranfield University and the Danish Meat Trade College (DMTC), Roskilde, offers personal mentoring at workers' factories.

Meat and Livestock Commercial Services (MLCSL) senior consultant Christine Walsh says: "A coach comes in to give them support. It's a case of trying to help them help themselves. They don't come in as a manager but more as a sounding board."

Walsh hopes by developing staff skills, the course will plough up to £100,000 back into their companies. She believes it will do this "through introducing lean manufacturing into meat processes, identifying and reducing waste, especially things like moving offal from waste to edible products and identifying export markets for those products".

Walsh believes the potential figure is realistic, "because it is based on a similar course for the red meat industry where most of the candidates did so".

The course is aimed at graduates who have been in the industry for a few years, such as team leaders who have not yet received formal management training. Students seeking a post graduate certificate must complete at least eight modules, lasting four to eight days, at Cranfield. Assessments are done through reports and presentations.

Candidates can go on to further work at Harper Adams, with visits to DMTC, to get the post graduate diploma. Those who complete a research project can gain a MSc.

Between modules, candidates complete in-company assignments, applying the learning they've done in the classroom. This is where the in-factory mentoring comes in.

Walsh says: "It's a very practical postgraduate programme covering slaughter through to retail packaging, with looks at new product development, export opportunities and the supply chain."

The course will cost £16,000 at most and MLCSL is looking into grants to cover it. The first intake is for January 11, 2011 and is aimed at about 16 candidates. Walsh believes the class size will allow participants to learn from each other as well as build up a network of contacts in the industry.