Equality Act What does it mean for LSE?

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1 Equality Act 2010 What does it mean for LSE?

2 Table of contents Introduction Overview of the Equality Act The Protected Characteristics: Key areas to consider Age Disability (new definition and changes) Gender reassignment (new definition) Marriage and Civil Partnership (no change) Pregnancy and maternity (changes for education providers) Race (no change) Religion and Belief (no change) Sex/Gender (no change) Sexual orientation (no change) Discrimination, harassment and victimisation - Definitions Direct discrimination Indirect discrimination Harassment and victimisation Some important changes for Human Resources to know about Positive action Pre-employment health related questions Direct Discrimination and Equal Pay Pay and benefits Secrecy Employment tribunal recommendations Some important changes for The Academic Registrar s Division, academic staff and all other related education providers to be aware of General protection Duty to make reasonable adjustments Pregnancy and maternity Financial support Service Providers What you need to be aware of Contractors The School s Responsibility and what employers need to be aware of Appendix 1: Protected characteristics Appendix 2: Carers Appendix 3: Employer Justified Retirement Age (EJRA)

3 Introduction Equality Act 2010 streamlines and harmonises previously existing equality legislation and also introduces some changes to strengthen the law against discrimination. The provisions of the Equality Act 2010 have direct implications for higher education institutions (HEIs), especially in the areas of student admissions, recruitment and employment and the provision of services. This document is intended to provide guidance about the Equality Act 2010 principally to managers, but also to others who may find the document, or parts of it, relevant. The reader may wish to use this document as a reference tool, extracting relevant sections for any queries or issues should they arise. Matters relating to employment, education and service provision have therefore been highlighted throughout the guide, for ease of reference. Overview of the Equality Act 2010 The Protected Characteristics: Key areas to consider Under the new Equality Act 2010, employees, students and service users are protected from being treated less favourably because they have a protected characteristic. The Act sets out nine protected characteristics as the grounds upon which discrimination is unlawful. The protected characteristics highlighted under the Act are: Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion or belief - 2 -

4 Sex (Gender) Sexual orientation Protected characteristics have replaced and expanded on what were previously known as equality strands. For definitions of the protected characteristics, please refer to Appendix 1. The following table, extracted from the ACAS guidance The Equality Act What s new for employers (http://www.acas.org.uk/chttphandler.ashx?id=2833&p=0), provides a useful illustration of the key changes and new provisions

5 Age In terms of employment, age is the only protected characteristic that allows an employer to justify direct or indirect discrimination. An employer may be able to justify (in)direct discrimination if they can show that their actions were a proportionate means of achieving a legitimate aim. (see page 6) Retirement - The Default Retirement Age (DRA) is being phased out beginning 6 April It will be completely removed by October In addition, as of 6 April 2011 short notices of retirement are no longer permitted. From October 2011 onwards workers shall retire voluntarily unless the employer sets an objectively justifiable retirement age (Employer Justified Retirement Age or EJRA). For more information on EJRA, please refer to Appendix 3. Disability (new definition and changes) List of capacities The Act has removed the list of capacities specified under the Disability Discrimination Act This implies that an individual is no longer required to demonstrate that, where an impairment adversely affects his or her ability to carry out a normal day-to-day activity, that activity involves one of a specified list of capacities. Extended definition of disability The definition of disability has been extended to also include people who have had a disability in the past. Duty to make reasonable adjustments Under previous legislation (Disability Discrimination Act), the duty to make reasonable adjustments applied only when it was impossible or unreasonably difficult for a disabled person to work, study or use a service. The condition of impossibility or unreasonable difficulty has been replaced by substantial disadvantage. The School - 4 -

6 has a duty to make reasonable adjustments for disabled people to pre-empt any substantial disadvantage in employment, study or provision of services. The duty to make reasonable adjustments is an anticipatory duty. In the case where disability discrimination is alleged against the School, the onus would be on the School to demonstrate that reasonable adjustments had been made. Discrimination arising from disability The Act introduces a new protection from discrimination arising from disability. It is discriminatory to treat a disabled person less favourably because of something related to their disability. It is only justifiable if an employer, education or service provider can demonstrate that such treatment is a proportionate means of achieving a legitimate aim. Gender reassignment (new definition) Gender reassignment is defined as the process of transitioning from one gender to another. Gender reassignment was previously covered in part by the Sex Discrimination Act. For the first time, full coverage has been given to this now protected group under the Equality Act The definition of gender reassignment has been extended to cover people who have proposed, started or completed a process to change their sex but are not necessarily under medical supervision. Marriage and Civil Partnership (no change) As with previous legislation, employees and students who are married or in a civil partnership are protected under the Act. Pregnancy and maternity (changes for education providers) There is no change in respect of employment. Provisions under the new Act that relate to the workplace reflect similar provisions in previous sex discrimination legislation

7 In addition, it is unlawful to consider an employee s period of absence due to a pregnancy - related illness when making a decision about her employment. For education and service providers, protection has been expanded to women outside of the workplace from discrimination that arises as a result of pregnancy and maternity. This protection includes students and prospective students. Also, for the first time, breastfeeding is now an explicit protection for non-workers (including students) within a period of 26 weeks from when the woman has given birth. 1 Race (no change) Religion and Belief (no change) The Act encompasses any religion, and also protects those who do not follow a certain religion or have no religion at all. Belief refers to any religious or philosophical belief or lack of such belief. Sex/Gender (no change) Both men and women are protected under the Act. Those who are undergoing or proposing gender reassignment are also covered. (see Gender Reassignment) Sexual orientation (no change) Lesbian, gay, bisexual and heterosexual people are protected under the Act. 1 After the 26 weeks period, breastfeeding may be protected by sex discrimination provisions

8 Discrimination, harassment and victimisation - Definitions The Act has made changes to the previously existing definition of discrimination to encapsulate a more comprehensive understanding of discrimination and harassment - Direct discrimination Direct discrimination occurs when you treat a student or employee less favourably than you treat (or would treat) another student or employee because of a protected characteristic. It is not possible to justify direct discrimination, so it is always unlawful. (except in cases of single sex institutions that only admit applicants of one gender and in certain limited cases relating to religion and belief, e.g. where there it is a genuine occupation requirement for a job). Under the new Act, direct discrimination includes discrimination by association and discrimination by perception which implies that a person may not necessarily have a protected characteristic himself/herself in order to claim discrimination on the basis of a protected characteristic. 2 In other words, discrimination arising because of a protected characteristic is also unlawful. Associative discrimination whereby a person is treated less favourably because of his/her association with someone who has a protected characteristic Perceptive discrimination whereby a person is treated less favourably because he/she is mistakenly believed to have one of the protected characteristics Indirect discrimination Indirect discrimination occurs when a policy, practice or provision is neutral on the face of it but its impact particularly disadvantages people with a protected characteristic, unless it can be justified as a proportionate means of achieving a legitimate aim (the Objective Justification Defence ). 2 Associative and Perceptive discrimination do not apply to the protected characteristics of marriage and civil partnership and pregnancy and maternity

9 Indirect discrimination has, for the first time, been extended to cover the protected characteristic of disability and gender reassignment. It does not, however, cover pregnancy and maternity. Harassment and victimisation Harassment on the basis of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation is unlawful. It does not apply to pregnancy and maternity and marriage and civil partnership. Complaints of harassment can be made regardless of whether or not the harassment was intentional. For the first time, employees can be held personally liable for harassing other employees. Third party harassment The Act makes the employer liable for harassment of an employee based on any protected characteristic where a third party (someone who is not an employee of the employer) harasses the employee in the course of their employment and the employer fails to take reasonably practical steps to prevent the harassment. However, this only applies if the employer knows that the employee has been harassed on at least two previous occasions. Victimisation can be alleged when a person is treated less favourably because he/she has asserted his/her legal right and/or helped someone else to do so

10 Some important changes for Human Resources to know about Positive action Taking positive action in certain circumstances is not unlawful. Such measures will arise when an employer makes special provisions to alleviate disadvantage connected to a characteristic or there is evidence of under-representation or participation of any particular protected group. There is no requirement for any of the positive action measures on employers; positive action is entirely voluntary. ( See ACAS guidance on the Equality Act for examples of positive action - General positive action measures came into force on 1 October 2010 and largely replicate the previous legislation provisions. Positive action provisions relating to recruitment and promotion came into force on 6 April It is in positive action provisions relating to recruitment and promotion that the Equality Act 2010 has made changes. Positive action measures in recruitment and promotion under previous legislation were limited to providing training and encouragement. For the first time, positive action can be actually used as part of the recruitment and promotion processes. However, the circumstances under which positive action can be used in recruitment and promotion are limited. The following are the conditions that need to be fulfilled - The employer must reasonably think that people with a protected characteristic are disadvantage or under-represented in the workforce The positive action taken should be a proportionate way of redressing that particular disadvantage or under-representation - 9 -

11 A candidate with an under-represented or disadvantaged group can be chosen over another candidate only if the two candidate are of equal merit, i.e. the selection assessment on a range of criteria rates them as equally capable of doing the job. Note: It is not lawful to have a policy of treating job applicants who share protected characteristics more favourably as a matter of course in recruitment and promotion. Pre-employment health related questions The Act limits the circumstances under which employers can ask health related questions. It is now unlawful to ask health related questions before short listing candidates for a job or before making a job offer. This includes inquiring about the health of the applicant (directly or indirectly) on job application forms and during job interviews. However, employers can still ask health questions For monitoring purposes To determine a candidate s capability to carry out a function that is intrinsic to the job For the purpose of making relevant provisions (reasonable adjustments) for the candidate to appear for the interview If having a specific impairment is a genuine occupational requirement To take positive action measures to assist disabled people Note: The data obtained for monitoring purposes or to make relevant provisions for the candidate should be kept confidential and not be used for the purpose of short listing or selecting candidates for the job. Once a person has been offered a job, the prospective employer is allowed to ask appropriate health-related questions

12 Direct Discrimination and Equal Pay The Equality Act allows a claimant to make a claim on the grounds of direct discrimination, even in cases where there is no actual person comparator. For example, where an employee can show that they would have received a better salary from their employer if they were of the opposite sex, may have a claim even if the a direct comparator is only fictitious. A claim of this nature would be made under sex discrimination. Pay and benefits Secrecy Under the Equality Act 2010, pay secrecy clauses or gagging orders have been made unenforceable. It is now unlawful to prevent employers from disclosing and/or discussing their pay. Employees are permitted to discuss their pay with anyone, including: Colleagues, former colleagues, or (for example) a trade union representative provided this is to establish whether or to what extent there is a connection between pay and having (or not having) a protected characteristic. An employee is also allowed to try and obtain pay information from a colleague, or former colleague, with this aim. These are known as relevant pay disclosures. Discussions are not limited to equal pay between women and men. They can relate to any of the protected characteristics defined under the Act. Employers are prohibited from disciplining employees who have had such discussions. This would likely amount to victimisation

13 Employers can, however, stipulate that their employees keep pay rates confidential from some people/organisations outside the workplace. These might include a competitor organisation. Employment tribunal recommendations The Act allows a tribunal to recommend that an organisation take steps to eliminate or lessen the impact of discrimination on its employees and the claimant. (This power does not apply in equal pay cases). Some important changes for The Academic Registrar s Division, academic staff and all other related education providers to be aware of General protection Former, current and prospective students are protected from discrimination, harassment and victimisation by the Equality Act The protection extended to former, current and prospective students largely reflects previous legislation. It prohibits discrimination, harassment and victimisation of students in deciding on and making offers of admission, in provision of education and services and in conferment of qualifications. Duty to make reasonable adjustments Under previous legislation (Disability Discrimination Act), duty to make reasonable adjustments applied to employment only (see above); however, it has now been extended to cover education and provision of services. The School s obligations to students cover services, facilities and benefits, both educational and non-educational in nature. (e.g. teaching methods, assistive learning technologies, the Estate, accommodation etc.) Therefore, the School now has a duty to make reasonable adjustments for disabled students and applicants to pre-empt any substantial disadvantage they are likely to face

14 In addition, exclusion of students is prohibited under the Act. It may be considered unlawful to introduce any procedures, practices or make any decisions which exclude a group of students in accordance with the protected characteristics. Discriminating against students by subjecting them to some form of detriment is also unlawful. Detriment is not defined in the Act but can be interpreted broadly as a disadvantage of some kind. Pregnancy and maternity The protected characteristic of pregnancy and maternity (including breastfeeding) has been, for the first time, extended to students and applicants. A student or applicant who is pregnant or has given birth within the last 26 weeks is now explicitly protected from unfavourable treatment. Financial support Earlier, charities were allowed to benefit a particular group provided that the requirement to do so was set out in a charitable instrument. But the new Act imposes an additional requirement that the restriction is a proportionate means of achieving a legitimate aim. A particular group may also be benefited for the purpose of preventing or compensating for a disadvantage linked to a protected characteristic. Therefore, the terms on which scholarships are offered to students may need to be revised. Service Providers What you need to be aware of The provisions of the Act, as they relate to discrimination, harassment and victimisation, also apply to the School in its capacity of providing goods, facilities or services to members of the public. (For definition of discrimination and harassment, see above). There are some exceptions, when people s protected characteristics may be relevant to the goods, facilities or services. These are: Services provided for people with a particular protected characteristic

15 Separate services for men and women or single-sex services. Where health and safety considerations apply to pregnant women. Services provided to people with a particular protected characteristic Generally, it is lawful to provide a service in a way which makes it only accessible to people with a shared protected characteristic (e.g. people of a particular religion or a particular ethnic group), providing it is shown that it is reasonably believed that it would not be practicable to provide the service to those who fall outside of this group. It is also lawful to target advertising or marketing at a group with particular protected characteristics, as long as the service offered is inclusive to all (unless one of the exceptions applies). It is not unlawful to provide separate services for men and women where providing a combined service would not be as effective. (e.g. a rest area for mothers, giving them the option to breastfeed). It is also possible to provide separate services for men and women in different ways or to a different level where: a combined service would not be as effective, and it would not be reasonably practicable to provide the service except in alternative ways or to an alternative level. In each case, it will be necessary to be able to objectively justify this. A business which is providing separate services or single-sex services must not exclude a transsexual person from the services appropriate to the sex in which the transsexual person presents (as opposed to the physical sex they were born with) unless it can objectively justify this, taking into account the needs and wishes of all service users involved

16 Health and safety for pregnant women You can refuse to provide a service to a pregnant woman, or set conditions on the service, because you reasonably believe that providing the service in the usual way would create a risk to the woman s health or safety, and you would do the same thing in relation to a person with a different physical condition. Contractors The School s Responsibility and what employers need to be aware of If the School procures contractors to provide services or carry out public functions on its behalf, the School is legally responsible for acts of discrimination, harassment and victimisation carried out by those contractors and their employees in the course of their employment. As long as: The contractor was acting in the course of their employment i.e. while they were doing their job, or The contractor was acting within the general scope of the School s authority i.e. while they were carrying out the School s instructions. However, the School will not be held legally responsible if it can show that: It took all reasonable steps to stop an employee acting unlawfully e.g. had written terms and conditions in their contract of employment which set out the School s policy on discrimination and harassment, provided their agent with equality training; The contractor acted outside the scope of the School s authority. Also, as is the case with employees, a contractor may be personally responsible for their own acts of discrimination, harassment or victimisation carried out during their employment or while acting with your authority. This applies where either:

17 o The School is also liable as their employer or principal, or The School would be responsible but can evidence that: o It took all reasonable steps to prevent the contractor from discriminating against, harassing or victimising someone, or The contractor acted outside the scope of the School s authority

18 Appendix 1: Protected characteristics The following are the definitions of protected characteristics as provided by the Equality and Human Rights Commission Age Where this is referred to, it refers to a person belonging to a particular age (e.g. 32 year olds) or range of ages (e.g year olds). Disability A person has a disability if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on that person's ability to carry out normal dayto-day activities. Gender reassignment The process of transitioning from one gender to another. Marriage and civil partnership Marriage is defined as a 'union between a man and a woman'. Same-sex couples can have their relationships legally recognised as 'civil partnerships'. Civil partners must be treated the same as married couples on a wide range of legal matters. Pregnancy and maternity Pregnancy is the condition of being pregnant or expecting a baby. Maternity refers to the period after the birth, and is linked to maternity leave in the employment context. In the non-work context, protection against maternity discrimination is for 26 weeks after giving birth, and this includes treating a woman unfavourably because she is breastfeeding

19 Race Refers to the protected characteristic of Race. It refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins. Religion and belief Religion has the meaning usually given to it but belief includes religious and philosophical beliefs including lack of belief (e.g. Atheism). Generally, a belief should affect your life choices or the way you live for it to be included in the definition. Sex A man or a woman. Sexual orientation Whether a person's sexual attraction is towards their own sex, the opposite sex or to both sexes Online source:

20 Appendix 2: Carers The following have a statutory right to request flexible work who have or expect to have parental responsibility of a child aged under 17 (from April 2011 a child aged under 18) who have or expect to have parental responsibility of a disabled child under 18 who receives Disability Living Allowance (DLA) who are the parent/guardian/special guardian/foster parent/private foster carer or as the holder of a residence order or the spouse, partner or civil partner of one of these and are applying to care for the child who are a carer who cares, or expects to be caring, for an adult who is a spouse, partner, civil partner or relative; or who although not related to you, lives at the same address as you For more on the right to flexible working, please consult DirectGov (http://www.direct.gov.uk/en/employment/employees/flexibleworking/dg_ )

21 Appendix 3: Employer Justified Retirement Age (EJRA) ACAS guide to Working without the Default Retirement Age Even without the DRA, it may still be possible to retire an employee lawfully at a set age provided that the retirement age can be objectively justified, which means that it is a proportionate response to a legitimate aim. We refer to this in our guidance as Employer Justified Retirement Age (EJRA). The justification of a set retirement age will be particularly important in the event that such a policy is challenged in an employment tribunal. Case-law around EJRA will develop once the DRA has been abolished. Currently EJRAs tend to be used in exceptional circumstances in which an employer has a retirement age under 65. For example, posts in the emergency services which require a significant level of physical fitness or other occupations requiring exceptional mental and/or physical fitness such as air traffic controllers. Alternatively, they have been used where the working relationship in question is not covered by the DRA regulations, for example, by partners in a law firm (partners are not covered by the DRA). Employers who wish to use an EJRA need to consider the matter carefully. They will need to ensure that the retirement age meets a legitimate aim, for instance workforce planning (the need for business to recruit, retain and provide promotion opportunities and effectively manage succession) or the health and safety of individual employees, their colleagues and the general public. As well as establishing a legitimate aim an employer will also need to demonstrate that the compulsory retirement age is a proportionate means of achieving that aim. The test of objective justification is not an easy one to pass and it will be necessary to provide evidence if challenged; assertions alone will not be enough. When looking to establish an EJRA it can be helpful to first set out the reason why you wish to do so clearly on paper. Then ask yourself whether you have good evidence to support this reason and then finally consider if there is an alternative, less or non-discriminatory way

22 of achieving the same result. Throughout, you should always remember that you need to show objective justification not subjective justification. Having established an EJRA employers should also follow a fair procedure in retiring people at the compulsory retirement age. You should give the employee adequate notice of impending retirement and, if circumstances permit, consider any request by an employee to stay beyond the compulsory retirement age as an exception to the general policy although it would be important in such circumstances to ensure consistency of treatment as between employees who might request to stay on. Online source -

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