Managers: How to Avoid a Discrimination Charge.
Updated: Oct 1
Who would be a manager? Apart from the pressure of the work itself, dealing with HR issues falls evermore onto the shoulders of managers who don't have a HR expert in an office nearby to go & talk through their people issues. I can't guarantee by following these steps you will be bullet-proof, but you will be armed with a great defence if charged.
There are 9 areas of discrimination in Employment law which fall under The Equalities Act 2010. These are:
marriage and civil partnership
pregnancy and maternity
religion or belief
If that wasn't enough to be getting on with, there is also the thorny issue of being accused of bullying & harassment to deal with on top of everything. Before we get into what you should do, I think it's wise to have some ground rules.
Be aware of your unconscious bias. Our brains are brilliant at saving energy. One way to save energy is to have short-cuts for complexity, saving on thinking time for our brains. We tend to group people together (social groups) and label the group for ease of access to our thoughts and feelings for anyone who represents that group, known as a stereotype. People are much more diverse and complex than the stereotypical thoughts & generalisations we give to them.
Treating people equally does not mean treating everyone the same. What that means is we must give everyone the same opportunities at work as everyone else. Some of us need more support than others, but we still want the same opportunities offered to us, even though we might need that extra support.
Treat people with respect, even if they make you angry and upset. It's ok to show anger, however being angry should be a red flag for you when it comes to having a difficult conversation or taking action.
Pause to get the whole picture of someone's performance or behaviour before action. It is very easy to get carried away when you hear that someone has potentially acted in a way that requires disciplinary action.
Create an environment where staff can bring their issues to you. Spend time with your team, listening to them as they go about their work. In the world of working from home, take the time to have a drop-in chat with individuals in your team & openly share your difficulties with them.
Give everyone opportunities. If there are opportunities for more demanding and stretching work, look for ways to share these around in a way that it will enhance their skills as well as get the work done. Delegating with a thoughtful approach will reap rewards in the medium & long term.
Have a structured approach to managing performance. I have lost count of the number of times I have run across managers that tell me that they don't have the time to do this. If you don't have a structured approach to managing performance, you are leaving yourself open to discrimination if you decide to discipline someone for poor performance. What is your possible defence if someone shouts "You're picking on me!" ?
You have no defence because you are picking on them for their poor performance. You aren't having the other meetings with your team to discuss their performance.
Create a Day Book
At the time of writing, your written entries in a diary are admissible in an employment tribunal. A day book, which can be paper or digital, has saved me oceans of time on more than one occasion because when an accusation arises, an investigation doesn't take a lot of time to get up a head of steam in your direction. The purpose of this book is for day-to-day operational notes for your use, but it is also much more than that for me.
I make notes:
When someone is late for work, a meeting or a task deadline. It doesn't mean that I will say or do anything at this stage, but it's good for me to get a picture of facts about the performance of a person when I do this. Have a separate page for these notes somewhere towards the back or hidden away, just incase someone has need to look at your note book.
When I have a meeting with someone about their performance or behaviour, good or bad. I summarise the outcomes too. This is good so that if you have need to speak to them about that specific behaviour or performance issue again, you have written evidence of exactly when & what happened. Dates are great for a quick email trace of written evidence too.
Observations of behaviour I tend to "nip things in the bud" when I see something I don't like. That's good management practice. Now go & make a note of exactly what you observed & what you did about it. Here & now is the time to write up exactly what was said.
This is outstanding management practice. You will be grateful for this if the person concerned decides you are a bully or "picking on them". For example, by making these notes of every intervention like this, you will be able to point out when & where you had a similar exchange with others.
Just a quick tip here: ALWAYS praise in public & reprimand in private. Even if you are right to pull them up, they will never forgive the embarrassment of a public dressing-down.
That's my list. What do you think?
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Mervyn is an international leadership development specialist and keynote speaker delivering inspirational workshops and talks around the world.