Background
Equality laws are changing all the time. They go back to the Community Relations Act 1965 and the 1975 Race Relations Act & Sex Discrimination Act, followed by the Disability Discrimination Act 1995. And European directives on age, disability, gender reassignment, race & belief, religion, sex, sexual orientation as well as parental rights. Despite Brexit, all of these are absorbed into UK law. The Equality Act captures all these laws. At the time of writing the government plans to introduce new laws on: –
- The Menopause
- Sexual Harassment
- Conversion Therapy
- Carers Leave
In Spring 2022 there are, also, prevailing discussions and controversies around
- Misogyny -the “Me Too Movement”
- Black Lives Matter
- Transgender Rights
- Social Media -Cyber Bullying and Stalking
It is vitally important that everyone Directors, Operational Managers, Unions/Employee Reps and HR Teams and staff alike, keep up to date with everything on the equality and diversity agenda becausewe all have rights and responsibilitiesunder the various laws as employers, members of staff and as customers in receipt of goods, facilities, and services.
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1. The Equality Act 2010- Its scope and applications for redress
The Equality Act 2010 consolidates most equality law into one Act. It prohibits conduct and creates duties in relation to ‘protected characteristics. There are nine protected characteristics ranging from age through to sexual orientation.
The Act prohibits direct and indirect discrimination, and harassment and victimisation. It also prohibits discrimination in relation to something arising from a person’s disability and creates a duty to make reasonable adjustments for disabled people.
The Act applies in various scenarios, including at work, in education and in relation to the provision of goods, facilities and services as well as public functions.
Individuals seeking redress under the Equality Act on the grounds of unlawful discrimination can make applications to an Employment Tribunal in respect of the workplace or the County Court for service delivery matters. Successful cases will result in compensation being paid to the applicant taking account of:
- Loss of Earnings
- Injury to Health
- Injury to Feelings
Every case turns on its own merits and there is no upper limit on the compensation that can be paid. Time limits for pursuing an employment claim and/or a service delivery claim are different. An employment claim must be lodged within three months of the date of the discriminatory act. A service delivery claim must be lodged within six months of the date of the discriminatory act.
Public authorities are subject to a Public Sector Equality Duty. The Duty means they must ‘have due regard’ to equality considerations when exercising public functions. Companies and private organisations which work with the public sector will often be asked to show how they are meeting the public sector equality duty in terms of whom they employ and serve.
The Equality Act and unlawful acts resulting from its contravention can also trigger links/referrals to the criminal law notably:
- Incitement to hatred – “hate crimes”
- Protection from Harassment Act
- Malicious Communications Act
- Sexual Offences
Prosecutions and subsequent convictions under these laws can carry heavy fines and/or substantial custodial sentences.
2. Nine Protected Characteristics
The Equality Act prohibits certain types of conduct and creates duties in relation to nine ‘protected characteristics. The nine protected characteristics are: –
Age:-which is defined as follows: –
(a)a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group.
(b)a reference to persons who share a protected characteristic is a reference to persons of the same age group.
(c) reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.
Disability:–which is defined as follows: –
A person has a disability if s/he has, or has had, a physical or mental impairment which has a substantial and long-term adverse effect on their ability to conduct normal day-to-day activities. It includes recurring and progressive conditions (i.e., the adverse effect will arise in future because of the acquired condition) and certain illnesses and conditions such as cancer and HIV. Long Covid may emerge through caselaw as meeting this definition.
Gender Reassignment:– which is defined as follows: –
A person who is proposing to undergo, is undergoing, or has undergone gender reassignment (the process of changing physiological or other attributes of sex, therefore changing from male to female, or female to male to match the gender identity).
Marriage and Civil Partnership:– which is defined as follows:
A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner. A married person is a person who is legally married under the Matrimonial Causes Act 1973. A civil partner is someone who has been registered as a civil partner under the Civil Partnership Act 2004. The provision is asymmetrical in nature since it only affords protection to people who are married or civil partners but not single people. It excludes people who have never married, divorcees, fiancées, “co habiteés” widows and widowers.
Pregnancy and maternity:– which is defined as follows:
Maternity refers to the period of 26 weeks after the birth (including still births), which reflects the period of a woman’s Ordinary Maternity Leave entitlement in the employment context. In employment, it also covers (where eligible) the period up to the end of her Additional Maternity Leave. It is unlawful to treat a woman unfavourable (e.g., asking her to leave) because she is breastfeeding.
Race:– which is defined as follows:
A person’s colour, nationality, ethnic or national origin. The term BAME (Black, Asian, and Minority Ethnic) or Ethnic Minorities refers to people who are not white British, by the UK Census definition. It includes people who would classify themselves under ‘White Other’ such as a White person from Eastern Europe, and travellers.
Religion or Belief:–which is defined as follows
Religious and philosophical beliefsincluding lack of belief. A belief should affect your life choices or the way you live for it to be included in the definition. The following is not an exhaustive list: –
- Atheists.
- Baha’i.
- Buddhists.
- Christians.
- Hindus
- Humanists (form of atheism).
- Jews.
- Muslims.
- No faith or religion.
- Pagans.
- Sikhs.
Sex:–which is defined as follows
A man or a woman (biological sex). The term ‘gender’ means the social / psychological identity of being male or female.
Sexual Orientation:– which is defined as follows
A person’s sexual orientation / attraction towards the same sex (lesbian or gay), the opposite sex (heterosexual) or to both sexes (bisexual).
- Lesbian women (L) and gay (G) women and men
- Heterosexual men or women
- Bisexual man (B) men or women.
3. Direct and Indirect Discrimination
The Act identifies two types of discrimination: direct and indirect.
Direct discriminationoccurs when a person, because of a protected characteristic, treats another less favourably than they would treat those without the characteristic. A workplace and service delivery example is shown next: –
Workplace – In the COVID-19 lockdown, common workplace examples that gave rise to direct discrimination included decisions that had been made around choosing who to furlough or not furlough, managing remote working, asking employees to return to the workplace andselection for redundancy.
Service Delivery –Traditional ways of doing things in the world of sports and leisure centres may not fit with some athletes’ religions. For instance, Jewish athletes cannot play a game on a Saturday and Muslim athletes may be prohibited from mixing with the opposite gender, including staff or spectators. Sports uniforms often pose problems for religious athletes. Players may feel uncomfortable wearing uniforms with sponsor logos that do not mesh with their beliefs (e.g., tobacco, alcohol, gambling). Uniforms may also be too revealing. Sports dress regulations should allow participants to wear religious head coverings.
Indirect discriminationoccurs when a person applies a ‘provision, criterion or practice’ which, although applied to persons with different protected characteristics (e.g., males and females) puts one group at a particular disadvantage (e.g., disadvantages females but not males). A workplace and service delivery example is shown below: –
Workplace–A woman is forced to leave her job because her employer operates a practice that staff must work in a shift pattern which she is unable to comply with because she needs to look after her children at particular times of day, and no allowances are made because of those needs. This would put women (who are shown to be more likely to be responsible for childcare) at a disadvantage, and the employer will have indirectly discriminated against the woman unless the practice can be justified
Service Delivery –An outdoor activity centre provides a variety of activities from walks on gravelled areas to ones involving strenuous physical activities. Their policy says they will only let people do the activities if they have a medical certificate of good health. Ensuring health and safety is reasonable but applying a policy like this to every activity is likely to be indirect discrimination. This is because customers who had mental health problems would not be able to join any activities and so would be treated worse than other customers. People with mental health problems might be quite capable of doing any of the activities on offer as their mental health conditions would not affect their ability to take up exercise or taking up the less strenuous activities. But it will not be indirect discrimination if the outdoor centre is able to justify this policy by showing that it is: for a good reason, and appropriate and necessary.
4. Exemptions – Occupational Requirements
The Equality Act says that if an employer can show that a particular protected characteristic is central to a particular job, they can insist that only someone who has that particular protected characteristic is suitable for the job. This means that it can be an occupational requirement to be of a particular sex, race, disability, religion or belief, sexual orientation, or age, or not to be a transsexual person, married or a civil partner where having, or not having, one of those protected characteristics is central to the job. Usually, the headings for occupational qualifications centre on: –
- Authenticity
- Physiology
- Privacy and Decency
- Religious or other susceptibilities
Examples — A women’s refuge may want to say that it should be able to employ only women as counsellors. Its client base is only women who are experiencing domestic violence committed by men. This would be a genuine occupational requirement.
5. Positive Action – Not Positive Discrimination
The Equality Act allows employers to use the positive action general provisions. Positive Action gives individuals from under-represented groups a chance to access support and training, in preparation for and throughout recruitment process, to overcome disadvantages competing with others.
Example: –A local fire service identifies from its monitoring data that women are under-represented as firefighters. The service makes clear in its next recruitment exercise those applications from women are welcome and holds an open day for potential women applicants at which they can meet women firefighters. However, the fire service must not guarantee that all women will get through the initial stages of the application process, regardless of their suitability.
The difference between an occupational requirement and positive action is that:
- An employer using an occupational requirement says that only people with a particular protected characteristic can do the job.
- An employer who wants to use positive action says that anyone who has the right skills, knowledge and experience is able do the job, but they want to look especially hard for someone with a particular protected characteristic.
6. Discrimination by Association and Perception
Discrimination by Association
The Equality Act also protects you if people in your life, like family members or friends, have a protected characteristic and you are treated unfairly because of that.
This is called discrimination by association.
Examples from the workplace and in service delivery: –
Workplace – Jo has a disabled child. Jo has needed to take several days off at short notice to take their child to medical appointments related to their disability. Jo overhears their manager say, “the amount of time off that child causes is not acceptable”. The next day, Jo is dismissed.
Service Delivery -Sylvie is a solicitor who represents people with mental health problems. She goes to a café with her clients and the owner tells her that he does not want her using his café because she acts for people with mental health problems, and he does not want them on his premises because he says it will disturb other diners.
Discrimination by Perception
It is against the law to discriminate against someone because of a ‘perceived’ characteristic – this means thinking someone has a characteristic when they do not. The legal term is ‘discrimination by perception’. The word ASSUME comes into its own here!
Examples of workplace and service delivery appear next-
Workplace -A heterosexual man employed in an office has a high-pitched feminine sounding voice. A colleague in the workplace assumes he is a gay man and subjects him to detriments because of his own prejudiced views.
Service Delivery – John does not have a mental health problem. He is asked to leave a gym where he is exercising as the organiser hears a false rumour that John hasschizoaffective disorder.
7. Discrimination arising from disability
In addition to direct and indirect discrimination, the Equality Act states that a person discriminates against a disabled person if they treat the disabled person unfavourably because of ‘something arising in consequence’ of their disability.
An Equality and Human Rights Commission Statutory Code Practice gives an example:
Example
A mother seeks admission to a privately run nursery for her son who has Hirschsprung’s disease, which means that he does not have full bowel control. The nursery says that they cannot admit her son because he is not toilet trained and all the children at the nursery are. The refusal to admit the boy is not because of his disability itself; but he is being treated unfavourably because of something arising in consequence of his disability.
This type of discrimination will be unlawful if the person cannot justify the treatment. However, it will not be unlawful discrimination if the person can show they did not know, and could not reasonably have been expected to know, about the disability.Here is an example: –
The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. However, the slurred speech is a consequence of his impairment. If the licensee is able to show that she did not know, and could not have been expected to know, that the customer was disabled, she has not subjected him to discrimination arising from his disability. However, in the example above, if a reasonable person would have known that the behaviour was due to a disability, the licensee would have subjected the customer to discrimination arising from his disability, unless she could show that ejecting him was a proportionate means of achieving a legitimate aim.
Reasonable adjustments for disabled people
The Equality Act also creates a positive duty to anticipate the needs of, and make reasonable adjustments for, disabled people. For example, in the context of services, the objective of the duty is to, as far as is reasonably practicable approximate the access enjoyed by disabled people to that enjoyed by the rest of the public.
The purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large.
The disability duty comprises four requirements. The four requirements are to ‘take such steps as it is reasonable to have to take’ to:
- avoid putting disabled people at a substantial disadvantage where a provision, criterion or practice would put them at that disadvantage compared with people who are not disabled – for example, adjusting a ‘no dogs’ policy for visually impaired people
- remove, alter, or provide means of avoiding physical features where those features put disabled people at a substantial disadvantage compared with people who are not disabled – for example, providing a wheelchair ramp alongside stairs
- provide an auxiliary aid where disabled people would, but for the provision of that aid, be put at a substantial disadvantage in comparison with people who are not disabled – for example, providing an induction loop for hearing impaired people.
What is deemed to be reasonable will depend on the circumstances.
The Equality and Human Rights Commission has identified the following potentially relevant factors:
- whether taking the step would be effective
- the extent to which it is practicable
- the financial and other costs of making the adjustment
- the availability of the necessary financial and other resources
- the extent of any disruption which taking the steps would cause
- the amount of any resources already spent on making adjustments.
The only way to determine for certain whether any adjustment would be reasonable to have to make is for a court to decide the issue.
8. Harassment and Victimisation
The Equality Act also prohibits harassment and victimisation.
Harassment is defined as engaging in unwanted conduct related to a protected characteristic, which has the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Examples of this include:
- A white worker who sees a black colleague being subjected to racially abusive language could have a case of harassment if the language also causes an offensive environment for her.
- An employer who displays any material of a sexual nature, such as a topless calendar, may be harassing her employees where this makes the workplace an offensive place to work for any employee, female, or male.
- A shopkeeper propositions one of his shop assistants. She rejects his advances and then is turned down for promotion which she believes she would have got if she had accepted her boss’s advances. The shop assistant would have a claim of harassment.
Victimisation is defined as subjecting an individual to detriment because they have done a ‘protected act’ (or in the belief that they have). Broadly, the protected acts are acts relating to bringing a claim under the Equality Act or alleging a person has contravened the Act.
For example:
- A gay man sues a publican for persistently treating him less well than heterosexual customers. Because of this, the publican bars him from the pub altogether. This would be victimisation
- A colleague gives support to a colleague taking an employer to a tribunal and is sacked. This would be victimisation
9. The Public Sector Equality Duty
The Equality Act says that public authorities must, in the exercise of their functions, ‘have due regard to the need to’:
- eliminate discrimination, harassment, victimisation, and any other conduct that is prohibited by the Act
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not
- foster good relations between persons who share a relevant protected characteristic and persons who do not.
The Act does not identify what is meant by the phrase ‘have due regard.’ However, the term has been considered extensively by the courts.
Broadly, the principles that emerge from the case law are:
- the duty concerns the impact of a proposal on all persons with protected characteristics and on any class of persons within a protected category who might clearly be adversely affected
- it is not a question of ticking boxes, the duty must be approached in substance, with rigour and with an open mind
- the duty must be fulfilled both before and during consideration of a particular policy
- the public authority does not have to refer expressly to the duty whilst exercising a public function
- decision-makers must be aware of the duty • the duty is non-delegable
- it is good practice for an authority to keep a record showing that it has considered the identified needs
- it is for the decision maker to decide what weight to give to the equality implications of the decision.
Public authorities who work or contract with non-public bodies will often want evidence that these stakeholders fully meet the public sector duty in an appropriate way.
10.Equality Impact Assessments – EIAs
It is important for public authorities to record the steps they have taken to meet the Duty.
Aside from this helping the authority to comply with the Duty in practice, it would also be an important evidential requirement should the authority be challenged in court for failing to comply with the Duty. One of the ways (but not the only way) an authority can demonstrate this, is through conducting an equality impact assessment. Our courses and toolkits help.
11. The Equality and Human Rights Commission
The Equality and Human Rights Commission (EHRC) was established with a duty to promote and encourage understanding of equality and human rights.
Individuals enforce their rights under the Equality Act 2010 before the courts. However, the Commission also has a range of powers at its disposal to enforce equality law at a more institutional level, and often strategically intervenes as a party to litigation if doing so could help develop equality law.
Broadly, the Equality Act requires the EHRC to promote and encourage the understanding of – and good practice in relation to – equality and human rights. The Act contains the EHRC’s ‘general duty,’ which requires the EHRC to encourage and support the development of a society in which:
- people’s ability to achieve their potential is not limited by prejudice or discrimination • there is respect for and protection of each individual’s human rights
- there is respect for the dignity and worth of each individual
- each individual has an equal opportunity to participate in society
- there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights
12. Vicarious Liability
An employer can be vicariously liable for the acts of its employees in breach of discrimination law.An employer has a defence to vicarious liability under the Equality Act if it can show that it took all reasonable steps to prevent the employee from doing the alleged act of discrimination or from doing anything of that description. Reasonable steps might include training, robust disciplinary & grievance procedures as well as equality impact assessments which are more than just a “tick box” exercise.
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