The Equality Act 2010 in force from October 2010 harmonises and replaces previous antidiscrimination legislation such as the Race Relations Act.

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1 Chapter 12 Discrimination and Equality 12.1 Overview The Equality Act 2010 in force from October 2010 harmonises and replaces previous antidiscrimination legislation such as the Race Relations Act. The Act makes it unlawful to discriminate against employees who have protected characteristics. These are quite wide ranging and are explained in detail below. The protected characteristics are: Age Disability Gender re-assignment Race Religion or belief Sex Sexual orientation Marriage and civil partnerships Pregnancy and Maternity The new Act has also widened protection to include associative discrimination and perceptive discrimination (see 12.2 below) Particular issues to be aware of in training yards Whilst employers need to be aware of all issues, those which are most likely to arise are sex discrimination where a female worker is treated less favourably because of pregnancy or a request to work flexibly for child care; less favourable treatment of a part time worker where they are selected for redundancy because of their part time status or disability discrimination where an employee is unfavourably treated or dismissed because of their disability or a reason related to it or indeed where an employee is not recruited because of a disability. Employers need to be aware that from October 2010 it is illegal to undertake pre-employment health screening see chapter 1 on recruitment When discrimination can occur Discrimination can occur when a person is seeking employment, during employment or in some instances after employment has ended. A recruitment advert could be discriminatory and potentially result in a claim. To make a claim during employment, an employee does not need any minimum period of service nor to work any minimum number of hours. An example of this would be where a new employee on the first day of employment advised the employer that he had a chronic back problem which limited his ability to do certain aspects of the job and the employer dismissed him immediately because he wasn t up to the job without making any investigations, following correct procedures and considering any reasonable adjustments or alternative jobs. An employer is liable for the acts of his employees and a claim may be made against an individual employee as well as the business. The yard will have a defence where it has taken reasonable steps to prevent the discrimination from occurring. An employer can be liable for discrimination which occurs at a social event outside the workplace if the event can properly be regarded as an extension of employment. 133 National Trainers Federation March 2014

2 12.2 Types of discrimination Direct Discrimination This occurs when someone is treated less favourably than another person because of a protected characteristic that the person has or is thought to have or because they associate with someone who has a protected characteristic. For example, most obviously, an employer refuses to employ a person of a particular nationality because of it. For an example of a less obvious case see associative discrimination below Indirect discrimination This occurs when an employer has a condition, rule, policy or practice in a company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if the employer can show that they acted reasonably in managing the business namely that the way the employer acted was a proportionate means of achieving a legitimate aim. A legitimate aim is a lawful decision in the running of the business and has to be fair and reasonable. The employer has to look at whether there are any less discriminatory alternatives to the decision. Employers must note that cost alone is not likely to justify a decision which causes indirect discrimination. An employer does not employ someone because English is not their first language and they do not have a certain standard of written English. The job does not require such a standard so the employer would be unable to justify it as a legitimate aim. Similarly restricting training opportunities to full time workers is likely to be discriminatory unless the employer can show that it acted legitimately and proportionally Associative Discrimination This is direct discrimination against someone because they associate with another person who possesses a protected characteristic. An employee is not promoted because she cares for her disabled child and the employer considers that she will not be able to concentrate on the job due to these caring responsibilities. This could be associative discrimination Perceptive Discrimination This is direct discrimination against an individual because others think that they possess a certain characteristic. It applies even if the person does not actually possess that characteristic. A male employee frequently comes to work dressed in clothes that his work colleagues link with homosexuality and he lives in an area of a town with a high percentage of gay inhabitants. The employee is not gay and his work colleagues know that he is not. Nonetheless they continually make jokes and comment about him being gay. This is likely to be perceptive discrimination. It is also likely to be harassment. 134 National Trainers Federation March 2014

3 Harassment Harassment is defined as 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 to that individual. Employees can complain of behaviour that they find offensive regardless of whether that behaviour is directed at them and regardless of whether or not the employee possesses the relevant characteristic him or herself. It is also unlawful for employees to be harassed because of perception and association. There are some grounds where an employee would not be able to claim harassment and these are pregnancy and maternity, marriage and civil partnership. Other than these, all the protected characteristics are covered. see the example under perceptive discrimination above Third party Harassment The Government repealed employer liability under Section 40 of the Equality Act 2010 for harassment of their employees by a third party. However, employers could still be liable if an employee is harassed by a third party if an employee suffers unwanted conduct which is related to a protected characteristic (i.e. sex, race, age, sexual orientation) and an employer takes no action to prevent that harassment from taking place or continuing. That could amount to a breach of the general antiharassment provisions of the Equality Act or an employee could potentially argue that the harassment by a third party and the employer s failure to take reasonable steps to prevent it constitutes a fundamental breach of contract which entitles the employee to resign and claim constructive unfair dismissal (if the employee has sufficient service to make such a claim). Accordingly employers should investigate any complaints of third party harassment by employees and consider whether any action can be taken to prevent the harassment from continuing (for example, by not requiring the employee to deal with a particular third party) Victimisation If an employee makes or is suspected of making a complaint or grievance or supports a complaint under the Equality Act and is then subsequently treated badly by the employer because of it, the employee may be able to claim that they have been unlawfully victimised. If the employee has themselves acted maliciously in making the complaint or grievance they will lose the protection from harassment. An employee has made a complaint because he feels that he is being discriminated against on racial grounds by his manager. As a result of that, a promotion that he has been promised is withdrawn. The employee could claim victimisation The Protected Characteristics These are the old grounds for discrimination which were contained in individual acts such as the Sex Discrimination Act and the Race Relations Act. Some of these grounds have been extended to give wider cover - in particular the Equality Act has widened the scope for an employee to claim protection from disability discrimination. National Trainers Federation March

4 Disability Discrimination As a result of the Equality Act, it is anticipated that more employees will be able to claim protection from discrimination on the grounds of disability and there are now six types of potential disability discrimination claim. Definition of disability The definition of disability is: if the person has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. Substantial simply means more than minor or trivial and it will include long term medical conditions such as asthma, diabetes, epilepsy, ME, depression and learning difficulties Long term means that the impairment has lasted or is likely to last 12 months or longer. People suffering from cancer, multiple sclerosis and HIV/AIDS are covered by the Act from the date of diagnosis they do not need to show that the illness is having a substantial and long term effect. It should be noted that: it protects past disability so someone who suffers harassment because of a disability they had in the past will be protected it protects a person from being treated less favourably because they are associated with a disabled person for example a parent who has disabled child and is treated unfavourably because of that it protects a person who is mistakenly perceived to be disabled. The six types of disability discrimination claim Direct discrimination because of a disability Disability connected discrimination (this is new, see below) Indirect discrimination Failure by the employer to make reasonable adjustments Harassment Victimisation The new protection from disability connected discrimination protects an employee from being unfavourably treated because of something arising in consequence of the employee s disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. It should be noted that the wording is unfavourably rather than less favourably so a disabled employee only has to show that they have been unfavourably treated not that they have been less favourably treated than a non-disabled colleague. Areas of employment covered In employment it is unlawful to discriminate against a person because of their disablement or for a reason relating to their disability in: recruitment including the advertisement, procedure, offer and terms of employment in employment (i.e. terms and conditions, opportunities for training, transfer, promotion, benefits etc) by dismissing them or subjecting them to other detriment in failing to make reasonable adjustments to the premises equipment or working conditions which would enable them to work 136 National Trainers Federation March 2014

5 Age In practice, the duty to make reasonable adjustments is the most important aspect of managing disability. The employer must consider what reasonable adjustments can be made to accommodate the disabled person and to take reasonable steps in the circumstances. Trainers in this position may wish to take further advice from the NTF. Potential adjustments could include: adjusting the premises to accommodate the disabled person allocating some of the disabled person s duties to another person transferring the disabled person to another job where there is an existing vacancy altering the disabled person s hours of work or training allowing the disabled person time off work for rehabilitation, assessment or treatment giving or arranging training or mentoring for a disabled person acquiring or modifying equipment providing supervision or support Advice is given in chapter 10.5 of this manual on handling long term sickness. This covers workers of all ages and less favourable treatment can include having a provision criteria or practice which puts people of a certain age group at a disadvantage, say a provision that training is only available to people with a certain length of service. An employer can lawfully discriminate against employees on the ground of age if they can justify that the discrimination is a proportionate means of meeting a legitimate aim. If any trainer wishes to have specific advice upon whether or not a practice is justified they should contact the NTF for individual advice. Advertising for a job asking for young enthusiastic person Sex It is unlawful for an employer to discriminate against a person on the grounds of his or her sex. The law does acknowledge that some jobs may be more suitable for a particular sex, where it is a genuine occupational qualification. The circumstances in which this would apply are tightly defined. A job can be limited to a particular sex if the nature or the location of the workplace means that the job holder must live on the premises and the premises lack separate sleeping accommodation and sanitary facilities for each sex and it would not be reasonable for the employer to provide separate facilities. Direct discrimination on grounds of sex an employer only considers men for a particular job because the work is heavy. This is not a genuine occupational qualification because although heavy lifting is involved, both men and women can fit the criterion. An example of indirect discrimination would be where an employer offered training only to full time workers. The business has a number of female workers who work part time because of child care responsibilities and they could claim that the practice of only offering training to full time workers is discriminatory. National Trainers Federation March

6 Maternity and pregnancy This is not a new concept and has previously been covered under sex discrimination. It is automatically unlawful discrimination if an employer discriminates against a woman because she is pregnant or because she has taken or will need to take maternity leave. It is key to note that an employee claiming discrimination under this ground does not have to show that they have been less favourably treated than an employee who is not pregnant. The new legislation also gives explicit protection against less favourable treatment for employees who are breastfeeding. The yard s secretary who is pregnant has been taking more rest breaks and toilet breaks because of her pregnancy. The employer disciplines her for being away from her desk and not answering the phone as he would any other person. This is discrimination because of the pregnancy and the employer would not have a defence that he was acting the same as he would with a non-pregnant secretary who was taking too many breaks Sexual orientation It is unlawful to discriminate against employees because of their sexual orientation or perceived sexual orientation Gender re-assignment The Equality Act provides protection for transsexual people and it is discrimination to unlawfully treat a person less favourably for absences from work because they are undergoing or have undergone gender reassignment than how they would be treated if they were absent because of an illness Married status/civil partnerships Race It is unlawful to discriminate against a person because he or she is married or because the person is in a registered civil partnership. It is unlawful to discriminate against a person on racial grounds which include not only race but also nationality, colour and ethnic or national origins. For an example, see the example in indirect discrimination above Religion and belief It is unlawful to discriminate against employees because of their religion or similar beliefs. This includes religion, religious belief or similar philosophical belief Discrimination other than contained in the Equality Act Trade Union Discrimination Trade union discrimination includes refusing to consider or offer employment, dismissal and action short of dismissal on this ground. It is unlawful to refuse to consider an application or to fail to offer employment if the reason can be shown to be either because the person was a member of a union (or a particular union) or because the person was not a member of a union (or a particular union). 138 National Trainers Federation March 2014

7 It is unlawful to dismiss an employee because he was, or proposed to become a member of a union, he had taken part or proposed to take part, in the activities of any union, or he was not a member of a union or had refused, or proposed to refuse, to become or to remain a member. It is unlawful to take other action short of dismissal for the purpose of preventing an employee from being or seeking to become a member of a union or penalising him for doing so, preventing him or deterring him from taking part in activities of the union or penalising him for so doing, or compelling him to be or become or remain a member of a union. See chapter 23 for further advice in connection with trade union matters Criminal records The law gives ex-offenders some protection against being discriminated against because of their criminal record. Under the Rehabilitation of Offenders Act 1974 amended in March 2014, an ex-offender who has not re-offended for a specific length will be considered rehabilitated and the person will be entitled to present him or herself to employers as if he or she had never been convicted in the first place. The length of period differs according to the type of sentence imposed and the age of person when convicted of the offence. For people aged 18 or over when convicted: prison sentences up to six months become spent after two years prison sentences up to two and a half years become spent after four years sentences between 30 months and four years become spent after seven years sentences over four years are never spent.. Most rehabilitation periods are halved if the person was under 18 when convicted. For probation, supervision, care orders, conditional discharge or bind over, the rehabilitation period is one year or until the order expires. The effect of rehabilitation is: the person is entitled to be treated for all purposes in law as a person who has not committed, been charged with or prosecuted for the offence evidence cannot be produced in Courts or Employment Tribunals about the spent convictions nor can the individual be asked about them the person need not treat questions asked otherwise than in Court (e.g. in the job application forms) about convictions as relating to spent convictions a spent conviction cannot be a proper ground for dismissing or excluding a person from any employment or for prejudicing him in any way in any employment if a conviction disclosed at the beginning of employment becomes spent by the end of employment that conviction should not be referred to when giving references to a prospective employer Further information is available on the Government s Disclosure and Barring Service website Equal Pay Legislation implies an equality clause into every contract of employment. This means that all terms in a female employee s contract must be no less favourable than those of a male National Trainers Federation March

8 colleague engaged in work of equal value. The Equality Act prevents employers from restricting employees from discussing their pay and conditions of employment with other employees of the same company Part time workers and fixed term workers See chapter 13 for advice Equal Opportunities Policy Employers should have in place an equal opportunities policy which sets out the company s policy on fairness and equality of treatment. A sample policy is set out at appendix 1. If any yard would like a more individual and detailed policy, then contact the NTF for assistance. Trainers should ensure that their employees are aware of the policy and that as a minimum employees have understood their obligations under it. Trainers should ensure that managers within their business are aware of and trained upon the policy and ensure that it is fairly and consistently applied. Having a policy in place and staff aware of it will help trainers deal with any problems that arise and would be an important part of an employer s defence were an employee to claim that they had suffered discrimination or less favourable treatment. 140 National Trainers Federation March 2014

9 Appendix 1 Sample Equal Opportunities Policy EQUAL OPPORTUNITY POLICY a. It is the [name of business] s policy that there should be equal opportunity for, and no discrimination against, employees or applicants for employment with the yard on any grounds including: - colour, race, nationality or ethnic or national origins; - sex, marital status, sexual reassignment or sexual orientation ; - disability; - religion or belief; - age The business commits to make reasonable adjustments for disabled employees. b. Discrimination can be direct or indirect. Direct discrimination occurs when one person is treated less favourably than another on one or more of the protected characteristic set out in (a) above. Indirect discrimination occurs when a requirement is imposed which can be complied with by a smaller proportion of persons having one of the protected characteristics than persons in another group and is not objectively justifiable. Discrimination can also be associative where a person is associated with someone who has a particular protected characteristic and by perception where someone thinks a person has a particular protected characteristic whether they do or not. c. It is responsibility of all employees to comply with this policy and if an employee is found to have discriminated against someone then legal proceedings can be taken against the employee as an individual as well as against the yard; d. The yard will not tolerate any unlawful discrimination committed by an employee whether direct or indirect or in any way. If an employee commits such discrimination he or she will be liable to disciplinary action which could include dismissal e. An employee who considers himself or herself to be the victim of discrimination may in the first instance be able to resolve the matter informally by explaining clearly to the perpetrator that their behaviour is unacceptable. Where it is not possible to resolve a matter informally, the employee should raise a grievance with their employer using the standard grievance procedure (as set out in the Agreement between the NTF and the NASS dated May 2010, a copy of which is available from.) National Trainers Federation March

10 142 National Trainers Federation March 2014

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