Equality Act 2010 ~ sweet tlc ltd

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Equality Act 2010

Simplifies Strengthens + extends protection Impacts on all employers Impacts on public authorities and

organisations delivering a public service

Protects the same groups: ‘protected characteristics’.

Replaces previous law

1. Public sector

duty reducing

Inequalities

(2011)

What the Act will do:

2. New integrated Equality Duty on public bodies (2011)


3. Use public procurement to improve equality (2011)


4.

Ban age discrimination outside the workplace


5.

Extend use of positive action


6.

Strengthens powers of employment tribunals


7. Protects carers from discrimination


8.

Protection for breastfeeding mothers


9.

Ban discrimination in private members’ clubs


10. Strengthen protection for disabled people


11.

Protect people from dual discrimination (2011)


12.

Gender pay

+ employment equality publishing (2012)


October 2010• Main provisions

Three Year Timetable

April 2011• Public sector: Equality Duty, Socio-economic Duty,

Procurement • Dual discrimination protection

2012• Ban on age discrimination in provision of goods,

facilities, services and public functions

2013• Private and voluntary sector gender pay

transparency regulations (if required)

N.B. Uncertainty as to when the Coalition Government will ensure different parts of the Act come into effect.

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There are two handbooks for this course

Copies of these slides will be e-mailed to you for your own reference and to share with colleagues

Equalities Legislation

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Date Legislation

1970 Equal Pay Act

1975 Sex Discrimination Act

1976 Race Relations Act

1995 Disability Discrimination Act

2003 Employment Equality (Religion & Belief)

2004 Civil Partnership Act (same sex couple rights)

2005 Disability Discrimination Act updated 1995 Act

2005 Employment Equality (Sex Discrimination) updated 1975 Act

2006 Employment Equality (Age Discrimination)

2010 Equality Bill ~ bringing all above laws into one Act


“Protected Characteristics”:


Direct Discrimination:

Occurs when someone is treated less favourably than another person because they:

have a protected characteristic or are thought to have a protected characteristic (perceptive discrimination)or because they associate with someone who has a protected characteristic (associative discrimination)

~ types of discrimination

Equalities Legislation~ types of discrimination


What has changed? Protection from direct discrimination in services is new for disability ….an example follows…..

Beatrice visits her local credit union

She asks for a small loan to enable her to buy a fridge

They refuse to lend her any money because they say that a woman is less likely to have a job and be able to repay the loan

This is direct sex discrimination.

Example 1

Equalities Legislation~ types of discriminationDirect Discrimination:

Example 2

What has changed? Protection from direct discrimination in services is new for disability

Janet is blind and requires the assistance of a guide dog.

She is not allowed into a cafe because the owner believes that the dog would be a safety risk.

She is excluded not because she is blind, but because of her use of a guide dog, which is something connected with or ‘arising from’ her disability.

Unless the cafe owner can objectively justify his treatment of Janet, she will have experienced discrimination arising from disability.



The Act also states it is direct discrimination if a person is wrongly thought to have a particular protected characteristic or is treated as if they do.


Associative discrimination

This is direct discrimination against someone because they associate with another person who possesses a protected characteristic

Already applies to race, religion or belief and sexual orientation

Now covers: age, disability, gender reassignment and sex

For example….


Associative discrimination

Example Jane is not allowed into her local community centre with her son because he is disabled.

This is discrimination against her by association.


Dual Discrimination

Is direct discrimination because of a combination of two protected characteristics

It excludes pregnancy/maternity, or marriage/civil partnerships

Dual discrimination or Combined discrimination


Perceptive discrimination

What has changed? Such protection only applied to race, religion or belief, and sexual orientation. Now it also applies to sex, disability and gender reassignment.

Samantha, is straight

She goes on a Gay Pride march to support some of her lesbian, gay, bisexual and transgender colleagues, and while there collects a ‘Support Gay Pride’ badge

After the march she goes into the community centre bar for a drink

The barman refuses to serve her as he believes that she is a lesbian because of the badge she is wearing

This is perceptive discrimination.

Example


Indirect discrimination

This already applies to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership

Now extended to cover disability and gender reassignment

Can occur when you have a condition, rule, policy or even a practice in your organisation that applies to everyone but particularly disadvantages people who share a protected characteristic.

For example….


Indirect discrimination

Jamal is a devout Muslim refugee who wishes to get advice on his immigration status.

His local advice centre only offers immigration advice on Fridays at 12.00.

This rule disadvantages him as he cannot attend mosque.

This will be indirect discrimination if the advice centre cannot show a good reason for only holding advice sessions on immigration at that time on a Friday.

They may be able to offer appointment at another time, in which case there will be no indirect discrimination.

Example


Harassment

The unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership.

2 examples….


Harassment

Ahmed, is from Afghanistan and a keen footballer, joins his local football club

Whenever he goes to a practice session the coach asks him why he does not go home to where he came from

Ahmed could bring a claim of harassment related to his race.

Example 1


HarassmentExample 2

Elsie and Frances, a lesbian couple, visit their local lunch club regularly. Recently a new helper has been taken on.This new helper keeps asking them about their sex life and refuses to serve them until after everyone else. She does not ask any other users about their sex lives. This unwanted conduct is occurring because of Elsie’s and Frances’s sexual orientation.

It is likely to amount to direct discrimination.

What has changed? Harassment protection now extended to disability A single definition of harassment now applies to disability, gender reassignment, race and sex.


Third party harassment

When a party or parties who are not the direct targets of sexual harassment directly but indirectly suffer the consequences of sexual harassment

Example:

A person who is not involved in a conversation hears co-workers talking and joking about sexual subjects in the workplace.


Victimisation

Occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act

or

because they are suspected of doing so.

For example…..


Victimisation

What has changed? Now no need for a victim to show that they have been less favourably treated than someone who has not made or supported a complaint. They need only show that they have been treated badly.

Example Comfort, who has schizophrenia, and her friend Christine regularly go to a bingo session at their local community centre. One day one of the assistants at the centre makes an offensive remark to Comfort about her schizophrenia. Comfort complains to the manager of the centre and Christine supports Comfort’s complaint.The manager promises to investigate but the next time Comfort and Christine go to the centre they are told that they are no longer welcome there. This is unlawful victimisation of both women.

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Equalities Legislation ~ types of discrimination

DirectDiscrimination?

Indirect Discrimination?

Harassment? Victimisation?

A member of staff is not allowed time off for a religious festival when members of another religion have been allowed time off for a festival relating to their religion.

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DirectDiscrimination

A member of staff is not allowed time off for a religious festival when members of another religion have been allowed time off for a festival relating to their religion.

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In your organisation most part-time jobs are done by women but most full-timers are men.Your organisation has a policy that does not allow training or promotion to part-timers.

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Indirect Discrimination

In a company most part-time jobs are done by women but most full-timers are men.The company has a policy that does not allow training or promotion to part-timers.





A staff member gave evidence for a colleague who brought a tribunal claim against their organisation on grounds of belief.

This member of staff then applies for a promotion and, although she has all appropriate skills and experience, she’s rejected because she has been labelled a troublemaker because she gave evidence at the tribunal.

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Victimisation

A staff member gave evidence for a colleague who brought a tribunal claim against their organisation on grounds of belief.

This member of staff then applies for a promotion and, although she has all appropriate skills and experience, she’s rejected because she has been labelled a troublemaker because she gave evidence at the tribunal.

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Employees at a large company are told that they must change their working hours, which include working past sunset on Friday.

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Indirect Discrimination

Employees at a large company are told that they must change their working hours, which include working past sunset on Friday.

Orthodox Jews cannot meet this requirement, and hence the requirement indirectly discriminates against them.

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A member of staff is continually teased about attending a religious festival. They find this teasing offensive and distressing.

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Harassment

A member of staff is continually teased about attending a religious festival. They find this teasing offensive and distressing. This situation may constitute discrimination on grounds of religion or beliefs, because it is the victim’s religious beliefs that are the

subject of the harassment.

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A company does not interview or appoint individuals from a particular racial group because it is felt that they might not fit in or might be unreliable.

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DirectDiscrimination

A company does not interview or appoint individuals from a particular racial group because it is felt that they might not fit in or might be unreliable.

DisabilityAs before Employers have to make reasonable adjustments for staff to help them overcome disadvantage resulting from an impairment.What’s changed?Employer can’t treat a disabled person unfavourably because of something connected with their disability (e.g. a tendency to make spelling mistakes arising from dyslexia).

This type of discrimination is only justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim.

Disability Also new:

Indirect discrimination now covers disabled people.

This means that a job applicant or employee could claim that a particular rule or requirement you have in place disadvantages people with the same disability.

Unless you could justify this, it would be unlawful.

Protected characteristic: Disability

How job descriptions can focus on outcomes and not the methods of completing a job

• An employer includes in criteria for a job that candidates need to be good at verbally communicating.

• This seems to exclude potential candidates who are deaf and may communicate through an interpreter.

• The job description could be made more inclusive by saying that candidates need good communication skills.

Gender reassignment

The protected characteristic of gender reassignment will apply to a person who is proposing to undergo, is undergoing or has undergone a process to change their sex.

What has changed? To qualify for protection from discrimination a transsexual person no longer has to show that they are under medical supervision.

Positive action 1/2

Some people with protected characteristics are disadvantaged or under-represented in some areas of life, or have particular needs.

They may need extra help or encouragement to have the same chances as everyone else.

The new provisions enable service providers to take proportionate steps to help people overcome their disadvantages or to meet their needs.

Note: •there is no requirement to take positive action•there is no restriction on treating disabled people more favourably than non-disabled people•it is also permitted to take steps to meet the needs of people with a particular disability.

There are 1.3 million disabled people in the UK who are available for and want to work

only 20% of people with mental health problems are in employment

Positive action 2/2

If an employer has the choice between two or more candidates who are equally qualified they will be permitted to offer a job to someone who is from an underrepresented group.

The selection of a less well qualified candidate will not be allowed.

Employers will not be compelled to select the individual from the underrepresented group.

Prior to the general election the Conservatives stated that if elected they would not introduce the positive action provision.

Breastfeeding

The Act has specifically clarified that it is unlawful to discriminate against a woman because she is breastfeeding is deemed to be sex discrimination.

Special rules apply to clubs and other associations with 25 or more members whose membership is controlled by rules and involves a selection process.

They can restrict their membership to people with a protected characteristic, provided that this is not a group defined by colour.

However, they cannot discriminate against members or people applying to become members or members’ guests on any other protected ground. What has changed? These special rules have now been extended beyond race, disability and sexual orientation to cover sex, religion or belief, gender reassignment, and pregnancy and maternity.

Associations and clubs

Special rules allow charities to provide benefits only for people with a particular protected characteristic (but not a group defined by colour).

Charities

CharitiesWhat has changed?

Charities benefiting only people of the same racial group, religion or belief, or sexual orientation must now show that this is intended to meet a legitimate objective in a fair, balanced and reasonable way or that it is positive action as well as being in line with their charitable instrument.

There is also now an exception along these lines for charities benefiting only people with the same disability.

Health questionnaires 1/2

Generally, an employer no longer able to use pre-employment health questionnaires before a job offer is made or before including an individual in a pool of applicants to be offered a job when a vacancy arises.

Certain questions will be permitted

E.g. Questions necessary to establish whether the applicant will be able to carry out a function that is ‘intrinsic’ to the work applied for or to determine whether reasonable adjustments need to be made.

Health questionnaires 2/2

Applicants with a disability such as a mental health condition will not have to disclose their condition before a job offer is made, unless it hampers their ability to do the job

Once you have made the job offer you can ask questions relating to health, however, if the job offer is then withdrawn, there is a risk that the individual may subsequently bring a discrimination claim

The burden of proof then passes to the employer who will have to show that no discrimination has taken place.

What this means

Employment Tribunals will have the power to make wide-ranging recommendations which employers will be obliged to carry out.

For example recommend the employer introduces : •a bullying and harassment policy•provide equality and diversity training to their staff•publish the selection criteria used for staff promotion

These recommendations will not be binding.But failure to follow through could be detrimental if any future claims are brought against the same employer.

Employment Tribunals

The Act will limit the enforceability of contractual pay secrecy clauses.

Staff will be free to disclose information about their pay.

Any attempts by an employer to restrict this will be unenforceable if:•the disclosure is made in order to find out whether there is a link between pay and a protected characteristic •the disclosure was made with the possibility of pay discrimination in mind.

In these circumstances any disciplinary action will amount to victimisation.

Pay secrecy

Single Equality Schemes

Many private, not-for-profit and public bodies have done the same in order to bring themselves in line with the demands of the Equality Act.

Many choose to use a Single Equality Scheme

National Government has combined all its equalities legislation and simplified, strengthened and extended it.

All need a robust and transparent process in place.

Single Equality Schemes (SES) are a most useful mechanism to address and show compliance.

SESs are especially suited to:

•those involved in strategic, operational and HR management roles within above organisations

•not-for-profit organisations + partnerships bidding for delivery of services.

If you operate in the public sector or receiving government funding the need to comply with legislation is paramount.

There are also implications for private and voluntary bodies who bid for tenders.


AdvantagesCan help rationalise processes in relation to areas of ‘protected characteristics’ as outlined in Equality Act 2010Can facilitate the identification of meaningful equality priorities

Can make it easier to align equality objectives with overall strategic plansCan help to ensure that multiple identities are explicitly taken into accountCan demonstrate commonality of experience of different equalities groups

Can help make it easier to engage staff in the content and delivery of scheme


Advantages DisadvantagesCan help rationalise processes in relation to areas of ‘protected characteristics’ as outlined in Equality Act 2010

Risk that individual ‘protected characteristics’ are not properly complied with

Can facilitate the identification of meaningful equality priorities

Possibility that the differences and distinctive mechanisms of the equality strands may be underplayed/watered down

Can make it easier to align equality objectives with overall strategic plans

May create a hierarchy of interests in equality strands

Can help to ensure that multiple identities are explicitly taken into account

It may not be possible to identify easily who is responsible for the scheme

Can demonstrate commonality of experience of different equalities groups

Varying timetable in relation to implementation of policies/schemes may lead to confusion in strategic planning

Can help make it easier to engage staff in the content and delivery of scheme

May make it more difficult for staff to administer one document across an organisation

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N.B. These slides form part of a general summary of the law. They should not replace legal advice tailored to your specific circumstances.

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Equality Act 2010 ~ sweet tlc ltd

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