Creating a fairer Britain
The next part of this guide tells you more about how you can avoid all the different types of unlawful discrimination in the following situations:
It also suggests how you can, through equality good practice:
You must avoid unlawful discrimination in allowing workers access to facilities at work.
Visit the Core guidance to make sure you know what equality law says you must do as an employer.
This does not stop you giving different workers different levels of access to facilities for a reason unrelated to any protected characteristic, such as seniority within an organisation or the nature of the job someone is doing.
However, you need to make sure that your rules about who has access to what facilities are not in themselves unlawfully discriminatory.
An employer gives a mobile phone to use for work calls to employees who have to travel a lot for work. However, phones are only given to employees who work full-time. This has a worse impact on women who are more likely to work part-time because they are combining childcare responsibilities with their paid employment. Unless the employer can objectively justify restricting the access to this particular facility in this way, this is likely to be indirect discrimination because of sex.
Facilities can be space or equipment that is necessary for a person or group of workers to carry out their work, or they can be ‘extras’ that you provide for your workers.
Depending on the size and nature of your organisation, facilities can include:
The next section of this guide looks in more detail at what avoiding unlawful discrimination means in relation to:
You can find out further information about organisations who can help you understand your responsibilities as an employer if one of your workers is undergoing gender reassignment, for example, about when and how you should change your personnel records.
In certain circumstances, you are allowed to discriminate against men or women in providing communal accommodation or benefits, facilities or services linked to that accommodation. Communal accommodation means residential accommodation which has shared sleeping accomodation (eg dormitories) which for reasons of privacy or because of the sanitary arrangements should be used only by workers of the same sex.
You still have to manage the accommodation in a way which is as fair as possible to both men and women. You should take into account the frequency of demand or need for use of the accommodation by one sex or the other. If it is reasonable to do so, you must also alter or extend the accommodation or find other accomodation rather than exclude a worker altogether.
A residential training course is arranged at a residential care home which has communal sleeping accommodation for its staff who happen to be all men. A female worker wants to attend the course but is refused because there is nowhere suitable for her to sleep. Her employer should arrange alternative accommodation nearby or offer her another training course where there are no such difficulties, if it is reasonable to do so.
You are allowed to discriminate in the above circumstances against workers who are undergoing, have undergone or intend to undergo gender reassignment, but only if you can objectively justify doing so. You must consider on a case by case basis whether it is appropriate and necessary to exclude the transsexual person. Where the transsexual person is post operative and visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should be treated in their acquired gender unless there are compelling reasons not to.
Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single-sex communal accommodation.
It is not a legal requirement for you to provide facilities because of workers’ religion or belief although in some circumstances it may be indirect discrimination if you fail to do so.
Moreover, many employers recognise that it is good practice to provide facilities which cater for the different needs of staff with a particular religion or belief.
These might include making a room which is available to staff for prayer, providing separate fridge shelves for food that needs to be kept separate and, if an organisation provides refreshments or meals for staff, meeting dietary requirements.
An orthodox Jewish worker in a small firm has a religious requirement that her food cannot come into direct contact with pork or indirect contact through items such as cloths or sponges. As a matter of good practice, after discussion with staff, the employer allocates one shelf of a fridge for this worker’s food, and separate cupboard space for the plates and cutlery that she uses. They also introduce a policy that any food brought into the workplace should be stored in sealed containers.
If you do provide this type of facility, remember that the protection from unlawful discrimination because of religion or belief covers both those who have a religion or belief and those who do not.
An employer decides to provide a prayer room for use by staff who hold religious beliefs. This risks unlawful discrimination against staff who do not hold a religious belief, who do not have access to this additional facility. A better approach may be to provide a quiet room for use by any staff for personal reflection and by people of any religion or belief or of none.
If your workplace has a canteen or restaurant, it would be good practice to make sure that special dietary needs because of religion or belief, such as halal and kosher, can be met, but it is unlikely to be a legal requirement
If you provide workers with changing facilities or showers, you must do this in a way that avoids unlawful discrimination because of religion or belief.
An employer only provides communal changing facilities for staff to change into their uniforms. This places staff of a particular religion which requires its followers not to change their clothing in the presence of others, even of the same sex, at a disadvantage compared to people who do not follow this religion. They have to change their clothes in toilet cubicles, which is unhygienic. Unless the employer can objectively justify the provision of the communal changing facilities, this may be indirect discrimination.
When you provide facilities for your workers, you must make reasonable adjustments for disabled people who work for you. Your aim should be to make sure that a disabled worker can, as far as is reasonable, access the facilities on the same basis and to the same extent as a non-disabled worker. In some circumstances, you may need to provide additional facilities especially for a disabled worker.
Q. Do I have to provide facilities in my workplace for a mother who has returned from maternity leave but is still breastfeeding her baby?
A. Yes, you have a legal duty to provide suitable rest facilities for breastfeeding mothers to use. Although there is no legal right for workers to take time off to breastfeed, you should try to accommodate mothers who wish to do this, bearing in mind that:
Further information and guidance is available from the Health and Safety Executive’s guide for employers on New and Expectant Mothers at Work.