Q&A 

When is favouritism a legal concern?

When is favouritism a legal concern?

Q: Is displaying favouritism unlawful?

A: It is normal for employers to get along with certain staff more than others, which can occasionally come across as favouritism.

Although favouring one employee over another may be fine if they are performing at a higher level, it can be problematic under different circumstances.  

And while giving favoured individuals preferential treatment can be frustrating, it is not necessarily unlawful.

However, this type of favouritism can still be damaging for an organisation, by alienating the rest of the workforce, reducing morale and potentially encouraging staff to seek employment elsewhere. 

Having said all this, favouritism will nearly always be considered unlawful when the reason behind it relates to a protected characteristic such as race, gender or age.

The Equality Act 2010 states that individuals should not suffer any less favourable treatment on account of a protected characteristic. For example, an employer that treats a male employee more favourably than their female colleague could leave themselves open to costly discrimination claims. 

Further examples of unlawful favouritism include offering reduced pay, withholding benefits and denying promotion opportunities to staff due to certain protected characteristics.

It is also possible that workplace policies, which apply to all staff universally, could unfairly disadvantage certain groups more than others.

In these situations, affected individuals could choose to lodge a claim for indirect discrimination and employers may need to objectively justify this in order to avoid paying compensation.  

Given the above, it is important that employers take proactive measures to guard against favouritism in the workplace, including implementing reliable ways to record performance and productivity.

This will help guarantee decisions on promotions and bonuses remain fair and transparent, ensuring the organisation remains a meritocracy. 

Line managers also have a big role to play in preventing favouritism and they should be encouraged not to display any preferential treatment when it comes to distributing work or approving requests for annual leave.

Certain employers may also wish to prohibit line managers from taking lunch breaks with staff under their command to dispel any notion that they favour one team member over another.

Whether or not favouritism is unlawful will be dependent on a number of circumstances.

However, employers are advised to evaluate how they treat staff and ensure decisions on matters such as promotions or bonuses can always be justified with valid business reasons.

Peter Done is managing director of Peninsula

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