Equality Act 2010: Summary Guidance on Employment

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1 GUIDANCE FOR BUSINESS Equality Act 2010: Summary Guidance on Employment Equality and Human Rights Commission

2 Table of contents Introduction... 5 The legal status of this guidance... 6 Who is protected by the Equality Act?... 7 What is meant by discrimination?... 8 Exceptions Age Occupational requirements Obeying another law National security Exceptions that only apply to some employers Special treatment in connection with pregnancy and maternity Positive action To which organisations does equality law apply? How your organisation should treat volunteers The public sector equality duties Recruitment Questions about health or disability Recruiting women who are pregnant or on maternity leave Working hours, flexible working and time off What is flexible working? The right to request The right not to be directly or indirectly discriminated against under equality law Requests for changes to hours of work or flexible working relating to disability Equality and Human Rights Commission 2

3 Requests for changes to hours of work or flexible working relating to religion or belief Requests for changes to hours of work or flexible working relating to gender reassignment Requests for changes to hours of work or flexible working on the basis of association with a protected characteristic A helpful approach for employers to take How employment law and equality law interact Time off for sickness Pregnancy-related absences Maternity, paternity, adoption and parental leave Pay and benefits Career development training, promotion and transfer Training Promotion or transfer Management issues Facilities Sleeping accommodation Single-sex facilities and workers religion or belief Facilities provided because of workers religion or belief Breastfeeding Reasonable adjustments for disabled workers Dress codes Management and appraisal Disciplinary procedures Dismissal Redundancy Retirement After someone has left a job Equality policies, equality training and monitoring Equality policies Equality training Monitoring Equality and Human Rights Commission 3

4 What happens if someone says they ve been discriminated against? Time limits The standard and burden of proof What the tribunal can order if someone wins an equality law employment case Settling a dispute Agreement between you and the worker Acas Qualifying settlement agreement Further sources of information and advice General advice and information Glossary Contact us... Error! Bookmark not defined. Equality and Human Rights Commission 4

5 Introduction This summary guide is part of a series written by the Equality and Human Rights Commission (the Commission) to explain equality rights and duties. These guides support the implementation of the Equality Act The full list of guides on employment covers the following, for employers and, separately, for workers: Recruitment Working hours, flexible working and time off Pay and benefits Career development training, promotion and transfer Management issues Dismissal, redundancy, retirement and after a worker has left Equality policies, equality training and monitoring. Equality and Human Rights Commission 5

6 The legal status of this guidance This guidance applies to England, Scotland and Wales. It draws on the Code of Practice on Employment. The guide is based on equality law as it was at March You should check with the Commission in case it has been replaced by a more recent version. At the end of this guide we have provided a list of words and key ideas to help you understand this guide all words highlighted in bold are included in this list. Equality and Human Rights Commission 6

7 Who is protected by the Equality Act? Protection from unlawful discrimination is provided by the Equality Act in relation to the following protected characteristics: age disability gender reassignment marriage and civil partnership pregnancy and maternity race religion and belief sex sexual orientation Equality and Human Rights Commission 7

8 What is meant by discrimination? Unlawful discrimination can take a number of different forms: An employer must not treat a job applicant, employee or former employee worse than any other because of a protected characteristic (this is called direct discrimination). Examples: An employer does not interview a job applicant because of the applicant s ethnic background. An employer bases their decision on whether to agree to a request to work flexibly on the worker s sex. The employer agrees a mother s request but refuses a father s request just because he is a man and the employer believes it is less important for him. This is probably direct sex discrimination and would also be a breach of the right to request flexible working. In the case of pregnancy and maternity, direct discrimination can occur simply if the person has the protected characteristic without needing to compare treatment to someone else. An employer must not do something which has (or would have) a worse impact on a job applicant, employee or former employee and on other people who share a particular protected characteristic than on people who do not have that characteristic. Unless they can show that what they have done, or intend to do, is objectively justified, this will be indirect discrimination. Doing something can include making a decision, or applying a rule or way of doing things. Equality and Human Rights Commission 8

9 Examples: An employer only offers applicants for a job one time for interview. One applicant is an observant Muslim who cannot attend at midday on Friday. Unfortunately, this is the only time they are offered for their interview. Unless the employer can objectively justify the lack of flexibility, this may be indirect discrimination because of religion or belief. An employer only allows workers who work full-time to apply for promotion. This has a worse impact on women workers, who are more likely to work parttime. Unless the employer can objectively justify the requirement to work fulltime, this is very likely to be indirect discrimination because of sex. An employer must not treat a disabled job applicant, employee or former employee unfavourably because of something connected to their disability where they cannot show that what they are doing is objectively justified. This only applies if the employer knew or could reasonably have been expected to know that the applicant is a disabled person. The required knowledge is of the facts of the employee s disability. The employer does not also need to realise that those particular facts are likely to meet the legal definition of disability. This is called discrimination arising from disability. Example: An employer tells a visually impaired person who uses an assistance dog that they are unsuitable for a job because the employer is nervous of dogs and would not allow it in the office. Unless the employer can objectively justify what they have done, this is likely to be discrimination arising from disability. The refusal to consider the visually impaired person for the job is unfavourable treatment which is because of something connected to their disability (their use of an assistance dog). It may also be a failure to make a reasonable adjustment. An employer must not treat a job applicant, employee or former employee worse than another because they are associated with a person who has a protected characteristic. Equality and Human Rights Commission 9

10 Example: An employer offers flexible working to all staff. Requests are supposed to be considered on the basis of the business needs of the organisation, but a manager decides that a man s request to work flexibly to care for his 90-year-old father is more important than another man s to care for his 50- year-old wife. If the manager s decision is based on the age of the person being cared for, this is almost certainly discrimination because of age by association. (It would not be unlawful if the decision was objectively justified, since direct discrimination because of age, unlike other protected characteristics, is allowed if justified.) An employer must not treat a job applicant, employee or former employee worse than another because they incorrectly think they have a protected characteristic (perception). Example: An employer does not give an applicant the job, even though they are the best- qualified person, because the employer incorrectly thinks the applicant is gay. This is still direct discrimination because of sexual orientation. An employer must not treat a job applicant, employee or former employee badly or victimise them because they have complained about discrimination or helped someone else complain or have done anything to uphold their own or someone else s equality law rights. The provisions relating to association, perception and victimisation can apply to anyone, even if they do not have one of the protected characteristics themselves. Example: An employer does not shortlist a person for interview, even though they are well-qualified for the job, because last year the job applicant said they thought the employer had discriminated against them in not shortlisting them for another job. An employer must not harass a job applicant, employee or former employee. Equality and Human Rights Commission 10

11 Example: An employer makes a job applicant feel humiliated by telling jokes about their religion or belief during the interview. This may amount to harassment. In addition, to make sure that a disabled person has the same access to everything that is involved in getting and doing a job as a non-disabled person, an employer must make reasonable adjustments. When an employer assesses a disabled job applicant s suitability for a job, they must take account of any reasonable adjustments which are needed to enable them to do the job. If, after taking reasonable adjustments into account, the disabled applicant would not be the best person for the job, the employer does not have to offer it to them. But if they would be the best person with the reasonable adjustments in place, the employer must offer them the job. Of course it makes sense to do this, as an employer will want the best person for the job anyway. Reasonable adjustments should also be put in place if someone becomes disabled while in work or if their needs change or they move to a different role. Example: A disabled worker has to eat at set times to manage their blood sugar for their diabetes, which is only possible by taking their breaks at slightly different times (and therefore working slightly different hours) from those that usually apply within an organisation. This does not have a negative impact on the worker s ability to do the job; quite the opposite, it removes a barrier which would otherwise stop them doing the job. If this is a reasonable adjustment, the employer must allow the change in hours. For employment, the Government provides help for the extra costs of reasonable adjustments through the Access to Work scheme. Equality and Human Rights Commission 11

12 Exceptions Sometimes there are situations where equality law applies differently. This guide refers to these as exceptions. There are several exceptions which apply to all employers. There are others that only apply to particular types of employer. In addition to these exceptions, equality law allows an employer to: Treat disabled people better than non- disabled people. Use voluntary positive action. Age Age is different from other protected characteristics. If an employer can show that it is objectively justified, they can make a decision based on someone s age, even if this would otherwise be direct discrimination. However, there are only limited situations in which direct age discrimination will be objectively justified. To show that something is objectively justified, you must be able to show that there is a good reason for doing what you are doing and that what you are doing is proportionate. The test is not quite the same as for indirect discrimination. This is because for indirect discrimination you are allowed to rely on any reason for wanting to make a decision or apply a rule provided it represents a real objective consideration and it is proportionate. When what you are doing is direct age discrimination you are only allowed to rely on a limited number of reasons. These are generally those that would be in the wider public interest, like promoting access to employment for younger people, or preserving the dignity of older workers as opposed to reasons particular to you. Even if you have a good reason, your actions must still be proportionate. Equality and Human Rights Commission 12

13 Employers should be careful not to use stereotypes about a person s age to make a judgement about their fitness or ability to do a job. Examples: An employer rejects an applicant for a management job because they are 25 years old and much younger than the people they would be managing. An employer only makes people over 50 do an aptitude test, because the employer believes that people over 50 do not have the mental agility to learn to do a job. These are both examples of age discrimination which an employer would find it very difficult to objectively justify. Occupational requirements 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 would be an occupational requirement. Example: 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 probably be a genuine occupational requirement. Obeying another law An employer can generally take into account a protected characteristic where not doing this would mean they broke another law. Example: A driving school must reject a 19-year-old who applies for a job as a driving instructor because to offer them a job even if they are otherwise the best candidate would involve breaking the law, because a driving instructor must be aged at least 21. Equality and Human Rights Commission 13

14 National security An employer can take a person s protected characteristic into account if there is a need to safeguard national security and the discrimination is proportionate. Exceptions that only apply to some employers If an employer is a religion or belief organisation, they may be able to say that a job requires a person doing the job to hold a particular religion or belief. This will only apply if being of a particular religion or belief is a genuine requirement of the job and the requirement is objectively justified. If the job is for the purposes of an organised religion, an employer may be able to say that a job or role requires a person to have or not have a particular protected characteristic or to behave or not behave in a particular way. If any of the following: a job or role exists for the purposes of an organised religion, such as being a minister or otherwise promoting or representing the religion, and because of the nature or context of the employment, it is necessary to avoid conflict with the strongly held religious convictions of a significant number of the religion s followers or to conform to the doctrines of the religion by applying a requirement to the job or role, then an employer may be able to refuse to employ a person because: o they are male or female o they are a transsexual person o they are married or in a civil partnership, including taking into account who they are married to or in a civil partnership with (such as someone who marries a divorced person whose former spouse is still alive) o they manifest a particular sexual orientation, for example, a gay or lesbian or bisexual person who is in a relationship with a same-sex partner. This exception should only be used for a limited number of posts. For example, ministers of religion, and a small number of posts outside the clergy, such as those which exist to promote or represent the religion. The requirement must be a proportionate way of meeting the aims stated above. Equality and Human Rights Commission 14

15 An employment service provider may be able to say that a person must have a particular protected characteristic to do vocational training, if the training leads to work for which having that characteristic is an occupational requirement. An educational establishment like a school or college may be able to say that someone has to be of a particular religion or belief, or must be a woman. Recruitment to the civil, diplomatic, armed or security and intelligence services and some other public bodies, can specify what nationality a person has to be. Recruitment for service in the armed forces may be able to exclude women and transsexual people if this is a proportionate way to ensure the combat effectiveness of the armed forces. In addition, age and disability are, in effect, not protected characteristics in relation to service in the armed forces. Disability can also be a reason to refuse someone work experience in the armed forces. Special treatment in connection with pregnancy and maternity It is not sex discrimination against a man to provide special treatment for a woman in connection with pregnancy or childbirth. Example: An employer allows a pregnant worker to have time off not just for antenatal appointments (which is a legal requirement) but also to attend fitness classes for pregnant women at a nearby gym. The worker makes up the lost hours at another time, which she would not have to do for an ante-natal appointment. It would not be sex discrimination to refuse a man s request to go to a fitness class during working hours. However, when granting special treatment to a woman who has already given birth you must be sure that the treatment is a proportionate means of compensating a woman for the disadvantages occasioned by her being pregnant or having given birth. In other words, any special treatment cannot be too remote from the fact that the woman has had a baby. It will usually be proportionate to continue any benefits that the woman has received as part of her employment for the whole of the maternity leave period, and other steps may be required to ensure that she is not disadvantaged because of absence due to pregnancy or maternity leave. If it is possible this should be done in a way that does not disadvantage another worker, though, sometimes, preferential treatment, even where this results in a disadvantage Equality and Human Rights Commission 15

16 to another worker, will be necessary. As long as any special treatment does not go beyond what is necessary to rectify her disadvantage, it will not be sex discrimination against a man. Equality and Human Rights Commission 16

17 Positive action Positive action means the steps that an employer can take to encourage people from groups experiencing disadvantage or low participation to take up employment opportunities, including jobs, training, promotion, transfer or other development opportunities. Equality law allows an employer to target opportunities at particular groups. This is not the same as positive discrimination, which equality law does not allow. 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 that 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. In a situation where candidates are equally qualified, it is possible to appoint an applicant from a group sharing a protected characteristic if you reasonably believe this group to be disadvantaged or under-represented in the workforce or if their participation in an activity is disproportionately low. Example: A housing advice service has no Muslim employees, even though it is located in an area where there is a high Muslim population. When a vacancy arises, there are two candidates of equal merit. One candidate is Muslim and the other is not. The advice service could choose to offer the job to the Muslim candidate under the positive action provisions, so that the non-muslim candidate could not claim religious discrimination. Equality law additionally allows an employer to treat a disabled person better, or more favourably, than a non-disabled person. This recognises the additional barriers to work that disabled people face. Equality and Human Rights Commission 17

18 Fuller guidance about the provisions of the Equality Act, including the Employment Code of Practice, is available from the Commission. Equality and Human Rights Commission 18

19 To which organisations does equality law apply? This guide calls someone an employer if they are the person making decisions about what happens in a work situation. Most situations are covered, even if the employer doesn t give their worker a written contract of employment or if they are a contract worker rather than a worker directly employed. Recruiting people to other positions like trainees, apprentices and business partners is also covered. An employer can be held legally responsible for something that is unlawful discrimination, harassment or victimisation by another person who is: employed by the employer, or carrying out their instructions to do something (who the law calls the employer s agent). An employer must not instruct, cause or induce a worker employed by them or their agent to discriminate against, harass or victimise a job applicant, employee or former employee. This applies whether or not the instruction is carried out. Equality and Human Rights Commission 19

20 How your organisation should treat volunteers Some volunteers have a contract to personally do work for an organisation and receive more than just their out-of-pocket expenses in exchange. In this case they may be protected as if they were the organisation s employees. In some cases an organisation may be providing a volunteering opportunity for someone and this counts as providing them with a service. The Commission provides a number of guides to what equality law means for service providers. Equality and Human Rights Commission 20

21 The public sector equality duties Public sector employers and other employers who carry out public functions on behalf of public authorities may have to have what the law calls due regard to the need to eliminate the types of conduct which are prohibited under the Equality Act discussed in this guide, and to advance equality of opportunity and foster good relations between people who have particular protected characteristics and people who don t. This is called the public sector equality duty. The three aims of the duty apply to all protected characteristics apart from marriage and civil partnership, which is only relevant to the first aim (eliminating discrimination). Thus a body subject to the duty must have due regard to the need to eliminate discrimination because of marriage or civil partnership in the context of employment, where it is prohibited under the Equality Act Some public authorities are also subject to what are known as specific equality duties. These require those public authorities to which they apply to take specific steps which are designed to enable them to better perform the public sector equality duty. They include steps relating to their role as employers, like monitoring information about employees. The specific equality duties are different in Scotland, England and Wales. The public sector equality duties cover all protected characteristics and therefore also extends to equal pay. In addition, public sector employers will be required to comply with the Human Rights Act 1998 and their employees may have rights against them under the Act. Further information about the public sector equality duties and the Human Rights Act is available from the Commission. Equality and Human Rights Commission 21

22 Recruitment Employers must avoid direct and indirect discrimination, discrimination arising from a disability, harassment and victimisation in all aspects of recruitment. They must also make reasonable adjustments for disabled people. Employers are able to take positive action before or at the application stage to encourage people from groups with a track record of disadvantage or low participation to apply for jobs. Questions about health or disability Except in very restricted circumstances or for very restricted purposes, an employer is not allowed to ask a job applicant about their health or any disability until the person has been: offered a job either outright or on a conditional basis, or included in a pool of successful candidates to be offered a job when a position becomes available. This includes asking such a question as part of the application process or during an interview. It also includes sending a questionnaire about health to fill in before a job offer. Questions relating to previous sickness absence count as questions that relate to health or disability. No one else can ask these questions on behalf of the employer either. An employer cannot refer an applicant to an occupational health practitioner or ask an applicant to fill in a questionnaire provided by an occupational health practitioner before the offer of a job is made (or before inclusion in a pool of successful applicants) except in very limited circumstances. The point of stopping employers asking questions about health or disability is to make sure that all job applicants are looked at properly to see if they can do the job in question, and not ruled out just because of issues related to or arising from their Equality and Human Rights Commission 22

23 health or disability, such as previous sickness absence, which may well say nothing about whether they can do the job now. An employer can ask questions once they have made a job offer or included someone in a group of successful candidates. At that stage, they could make sure that someone s health or disability would not prevent them from doing the job. But they must consider whether there are reasonable adjustments that would enable them to do the job. If an employer asks questions about health or disability which are not allowed by equality law, the Commission can take legal action. An employer can ask questions about health or disability when: They are asking the questions to find out if any applicant needs reasonable adjustments for the recruitment process, such as for an assessment or an interview. They are asking the questions to find out if a person (whether they are a disabled person or not) can take part in an assessment as part of the recruitment process, including questions about reasonable adjustments for this purpose. They are asking the questions for monitoring purposes to check the diversity of applicants (although this information should be collected separately and must not form part of the recruitment process). They want to make sure that an applicant who is a disabled person can benefit from any measures aimed at improving disabled people s employment rates. For example, the guaranteed interview scheme. Employers should make clear to job applicants that this is why they are asking the question. They are asking the question because having a specific impairment is an occupational requirement for a particular job. Example: An employer wants to recruit a Deafblind project worker who has personal experience of Deafblindness. This is an occupational requirement of the job and the job advert states this. The employer can ask on the application form or at interview about the applicant s disability. Continued Equality and Human Rights Commission 23

24 The questions relate to a requirement to vet applicants for the purposes of national security. The questions relate to a person s ability to carry out a function that is intrinsic (or absolutely fundamental) to that job. Where a health- or disability-related question would mean an employer would know if a person can carry out that function with reasonable adjustments in place, then they can ask the question. Example: A construction company is recruiting scaffolders. The company can ask about health or disability on the application form or at interview if the questions relate specifically to an applicant s ability to climb ladders to a significant height. The ability to climb ladders to access scaffolding is a function that is intrinsic or fundamental to the job. In practice, even if a function is intrinsic to the job, an employer should ask a question about a disabled person s ability to do the job with reasonable adjustments in place. There will therefore be very few situations where a question about a person s health or disability needs to be asked. Recruiting women who are pregnant or on maternity leave An employer must not refuse to employ a woman because she is pregnant, on maternity leave or because she has (or has had) an illness related to her pregnancy. Equality law does not say that a woman applying for a job has to tell the employer that she is pregnant. This is because the employer must not base their decision about whether or not to employ her on whether she is pregnant but on whether she has the skills to do the job. If a woman does not tell an employer that she is pregnant and is given the job, the employer must not dismiss her when she tells them about her pregnancy. More help with this situation is available in the Commission s guide New and expectant parents toolkit. An employer also cannot ask a woman whether she intends to have children, whatever her age or marital status or even if it thinks she might be pregnant. This is Equality and Human Rights Commission 24

25 not something that should be taken into account in deciding whether a person has the skills needed for a particular job. Fuller guidance about recruitment and the Equality Act is available from the Commission. Equality and Human Rights Commission 25

26 Working hours, flexible working and time off Employers must avoid direct and indirect discrimination, discrimination arising from a disability, harassment and victimisation in making decisions about what hours an employee should work, whether to allow them to work flexibly and when to allow them time off. They must also make reasonable adjustments for disabled people. What is flexible working? By flexible working, this guide means any change from the usual working week of 35 or more hours worked between set times and at a set place. In practice, this might mean a worker: working part-time, working only during term time, or working from home some of the time adjusting their start and finish times adopting a particular shift pattern or working extended hours on some days with time off on others. This guide is only about equality law. There is other legislation governing the right to request flexible working which currently gives many employees with caring responsibilities for children, or adults in some cases, the right to have a request for flexible working considered according to set procedures. From 30 June 2014 new legislation will come into force which will mean that all workers with more than 26 weeks service will have the right to request flexible working for any reason. There are two main legal rights to flexible working: the right to request flexible working, and the right not to be directly or indirectly discriminated against under equality law Equality and Human Rights Commission 26

27 The right to request Legislation governing the right to request flexible working currently gives many employees with caring responsibilities (for children or, in some cases, for adults) the right to have a request for flexible working considered according to set procedures. Currently, if an employee qualifies for the right to request flexible working, you can refuse only on one of the business-related grounds set out in the statutory rules. If you do not follow the set procedures, you risk being taken to an Employment Tribunal and possibly having to pay compensation to the employee. You will find at Acas (if you are in England and Wales) or Business Gateway Scotland (if you are in Scotland) more information on the right to request and what you must do if an employee who qualifies for the right to request asks you to allow them to work flexibly. From 30 June 2014 new legislation will come into force which will mean that all workers with more than 26 weeks service will have the right to request flexible working for any reason. From 30 June 2014, employers who receive a request under the right to request scheme will no longer have to deal with requests for flexible working under the statutory regulations but will be under a duty to consider the request in a reasonable manner. Acas has produced some non-statutory guidance on handling requests for flexible working under the new regime: The right not to be directly or indirectly discriminated against under equality law Requests for changes to hours of work or flexible working based on association with a protected characteristic are governed by equality law as well as the right to request above. An effective way to avoid discrimination when deciding who can change their working hours or work flexibly is to develop and follow a set procedure to manage flexible working requests. Equality and Human Rights Commission 27

28 Requests for changes to hours of work or flexible working relating to disability Flexible working may be required as part of the duty to make reasonable adjustments to remove barriers for disabled people. However this does not apply to non-disabled workers, for example, if they ask to work flexibly to take care of a disabled person, but most will qualify for the right to request flexible working above once they have worked for their employer for at least 26 weeks. Requests for changes to hours of work or flexible working relating to religion or belief Some religions or beliefs may require their followers to pray at certain times of the day, or to have finished work by a particular time. If you apply a general rule about working hours that means a worker has to take rest breaks or finish work at a particular time, you need to be able to objectively justify the rule, as otherwise this may be indirect discrimination because of religion or belief. See our guidance: Religion or belief in the workplace: a guide for employers following recent European Court of Human Rights judgments. Requests for changes to hours of work or flexible working relating to gender reassignment If a request to work flexibly is because someone proposes to undergo, is undergoing or has undergone gender reassignment, you should consider the request on the same basis as you would consider any similar request to work flexibly for reasons not related to gender reassignment. You should not refuse a request or treat it less seriously because a transsexual person is making it. For more information on flexible working see the Commission s Working Better report. Equality and Human Rights Commission 28

29 Requests for changes to hours of work or flexible working on the basis of association with a protected characteristic The duty to make reasonable adjustments to remove barriers for disabled people does not apply to non-disabled workers who require adjustments to take care of a disabled person with whom they are associated. People in this position, and those assisting children or older relatives (whether or not they are disabled) with their day-to-day care needs, are often referred to as carers. Most carers will qualify for the right to request flexible working once they have worked for their employer for at least 26 weeks. The protected characteristic of the person with whom a worker is associated may be relevant if an employer makes a decision based on that protected characteristic. A helpful approach for employers to take An effective way for an employer to avoid discrimination when deciding who can change their working hours or work flexibly is to set up a process that does not start by looking at the reason for the worker s request, but first considers whether the organisation would still be able to carry out its purpose if they agreed the request. How employment law and equality law interact Employment law (rather than the equality law, which is explained in this guide) sets out people s rights to: a minimum number of days of paid time off paid and unpaid maternity leave paid paternity leave paid and unpaid adoption leave unpaid parental leave unpaid family emergency leave in certain circumstances (for example, if a worker s usual childcare or care for other family members who depend on them is not available at short notice) paid or unpaid time off for public duties and trade union responsibilities. Equality and Human Rights Commission 29

30 More information about these rights is available at In general, equality law applies not to whether someone has a right to time off, but how their employer makes decisions about: who gets to take time off, when and how much whether the time off should be paid or unpaid how the employer records different types of absence. Exceptions to this, where equality law does affect whether someone has a right to time off, are: time off as a reasonable adjustment to remove barriers for disabled people gender reassignment leave pregnancy-related absence Time off for sickness Employers sometimes use workers sickness absence records to help them make decisions about things like: promotion bonuses redundancy references If an employer treats time off taken by a disabled person which relates to their disability in exactly the same way as they treat sickness absence taken by a worker who is not disabled, this may result in the disabled person being treated worse than another worker because of something arising from their disability. Once an employer knows that someone comes within the definition of a disabled person, they must avoid: direct or indirect discrimination because of disability, or discrimination arising from disability. They must also make sure that they have complied with the duty to make reasonable adjustments. Equality and Human Rights Commission 30

31 The employer should: Record disability-related time off separately from general sick leave. Stay in touch if someone is absent for a long period to find out how they are and to tell them what s happening at work (though they should make it clear they don t expect the person to come back to work before they are ready). Think about a plan for return to work, for example, arranging for the person to start work again gradually or to do some work at home before they come into the workplace, if this is possible in the particular job. Consider reasonable adjustments with the person and, if necessary, use expert advice to work out what adjustments can be made for when the person is ready to return to work. If a change is reasonable, the employer must make it. Employers do not have to pay sick pay beyond what they normally pay just because time off is disability-related. But it may be a reasonable adjustment to: extend sick pay, or offer unpaid disability leave, or allow someone to take the extra time off as annual leave. If the reason someone is absent is because of a delay by their employer in implementing a reasonable adjustment that would enable the person to return to the workplace, maintaining full pay may well be a further reasonable adjustment for the employer to make. The employer could also change the targets expected of someone so that that person has an equal chance of earning bonuses. Pregnancy-related absences Special rules apply to sickness absence which is related to a woman s pregnancy or to her having given birth. Employers should record pregnancy-related illness separately from other kinds of illness and should not count it towards someone s total sickness record. An employer should not pay a woman who is absent for a pregnancy-related illness less than the contractual sick pay she would receive if she was absent for any other illness with a statement of fitness to work ( fit note ). Equality and Human Rights Commission 31

32 An employer must not take into account a period of absence due to pregnancyrelated illness, or maternity leave, when making a decision about a woman s employment, for example, for disciplinary purposes or if they are selecting workers for redundancy. Sickness absence associated with a miscarriage should be treated as pregnancy-related illness. More information about what employers should do in this situation can be found in the Commission s Guidance on managing new and expectant parents and Your rights to equality at work: pay and benefits. An employer must give a pregnant employee time off for ante-natal care. Ante-natal care can include medical examinations, relaxation and parenting classes. The right for paid time off does not currently extend to the partners of pregnant women, although an employer could choose, as a matter of good practice, to allow someone to take annual leave or unpaid leave or to work flexibly to support their partner. The Government has now passed legislation which means that, from 2015, prospective fathers and partners will be able to take unpaid leave to attend up to two ante-natal classes. Maternity, paternity, adoption and parental leave When dealing with workers who request or take maternity, paternity, adoption or parental leave, an employer must make sure they do not discriminate against a person because of a protected characteristic. Example: A lesbian has asked her employer for unpaid parental leave. She and her partner adopted a child two years ago and she wants to be able to look after her child for part of the summer holidays. The worker made sure the time she has requested does not conflict with parental leave being taken by other workers. In exercising their discretion whether to grant parental leave, the woman s line manager refuses her request because they do not agree with same-sex couples being allowed to adopt children. This is likely to be direct discrimination because of sexual orientation. Neither equality law nor employment law gives a woman a right to paid time off for in vitro fertilisation (IVF) or other fertility treatment. But in responding to any request, Equality and Human Rights Commission 32

33 the employer must not treat a woman worse than they would treat a man making an equivalent request for time off. New laws are expected in April 2015 under which mothers, fathers, partners and adopters will be able to opt to share parental leave after their child s birth or placement. It is intended that this will apply to babies whose expected week of birth begins on or after 5 April 2015 (or, in the case of adoption, children matched or placed for adoption on or after 5 April 2015). From 2015, it is expected that parents in surrogacy and foster to adopt arrangements will also qualify for adoption leave. Fuller guidance about working hours, flexible working, time off and the Equality Act is available from the Commission. Equality and Human Rights Commission 33

34 Pay and benefits Employers must avoid direct and indirect discrimination, discrimination arising from a disability, harassment and victimisation in pay and benefits. They must also make reasonable adjustments for disabled people. There are different ways in which an employer might decide what to pay a person and what benefits to provide, such as: the going rate for the job in the relevant sector and/or area the skills and qualifications needed by someone when they do the job their performance in the job. Employers must make sure that the way they work out and apply these criteria does not discriminate unlawfully. Specific rules apply where pay or benefits are part of the worker s contract of employment and women and men are being paid differently. To help avoid discrimination, employers can: Make sure they know why they are paying people differently. Check that people who share a particular protected characteristic do not generally do worse than people who do not share it. Use an equal pay audit to check the impact of decisions on pay and benefits. Implement a transparent, structured pay system based on a sound job evaluation scheme, which is more likely to be free of bias than one that relies primarily on managerial discretion. Employers should consider all aspects of pay and benefits in ensuring that they are complying with equality law, including: any service they give their workers as a benefit, such as group insurance the pay rate for men and women bonus payments Equality and Human Rights Commission 34

35 occupational pension schemes health insurance. The Commission has produced an equal pay audit toolkit, including a version especially for small businesses. There is also a Code of Practice on Equal Pay. Fuller guidance about pay, benefits and the Equality Act is available from the Commission. Equality and Human Rights Commission 35

36 Career development training, promotion and transfer Employers must avoid direct and indirect discrimination, discrimination arising from a disability, harassment and victimisation in all aspects of career development. They must also make reasonable adjustments for disabled people. Training Employers can generally decide whether to offer training and, if they do offer it, who needs it. However, they must do this without unlawful discrimination, making reasonable adjustments if necessary. Employers should consider all aspects of training, including: learning on the job coaching e-learning workshops induction programmes job shadowing mentoring networking and seminars formal classes on day release or out of work hours project work buddying secondments and sabbaticals. Employers must not stop someone doing training because they are pregnant, on maternity leave or due to take maternity leave, or on pregnancy or maternity-related sickness absence, unless a specific risk to health and safety has been identified. Equality and Human Rights Commission 36

37 Promotion or transfer An employer must offer opportunities for promotion, transfer or other career development without unlawful discrimination. Where necessary they must make adjustments for disabled people. Promoting or transferring a worker is very similar to recruiting them in the first place. An employer must not deny someone promotion opportunities because they are pregnant or on maternity leave. Employers should tell women about promotion opportunities when they are on maternity leave. If a disabled person might be eligible for promotion, transfer or other development opportunity their employer should: not make assumptions about the person s abilities or willingness to take on a new role consider whether particular qualifications are actually required or whether what they really need is a particular skill level not say or imply that it is unsuitable for a disabled person unless there is a clear role-related reason for this tell everyone, including workers who have a disability, about any promotion or transfer or other development opportunity, including giving them the information in the format they usually use at work, for example, large print or electronically make any reasonable adjustments needed to participate in an interview take account of how reasonable adjustments could enable someone to meet the new requirements when assessing their suitability for a new role. If after working out how reasonable adjustments could enable the disabled person to meet the new requirements of a role to which they are considering promoting them, the employer decides they are not the best person for the promotion, they do not have to offer it to them. Equality and Human Rights Commission 37

38 Management issues Employers must avoid direct and indirect discrimination, discrimination arising from disability, harassment and victimisation in all aspects of the management of employees. They must also make reasonable adjustments for disabled people. Facilities Facilities can be space or equipment necessary for a person or group of workers to carry out their work. They can include: access to computers, mobile phones and other technology toilet and washing facilities sleeping facilities kitchen or tea and coffee making facilities changing/locker rooms showers canteens parking for cars or bicycles prayer and quiet rooms facilities for breastfeeding mothers crèches and childcare social clubs sport and exercise facilities health clinics and occupational health services. There are some particular circumstances where employers should take care to avoid unlawful discrimination. Equality and Human Rights Commission 38

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