The Equality Act 2010 A Guide. September 2012.

Transcription

1 The Equality Act 2010 A Guide September 2012.

2 What is the Equality Act? The Equality Act is a piece of legislation that protects us all from unfair treatment because of a physical or other specific characteristic that is fundamental to our being. It also requires public authorities to observe the need to eliminate discrimination, advance equality and foster good relations. On 1st October 2010 the majority of the Act came into effect. The Act replaced all previous equality legislation (including the Disability Discrimination Act 1995, often referred to as the DDA ) bringing everything together under one single Act. Some new rights were included in the Act. Some parts of the Act came in later such as the Public Sector Equality Duties, effective from April 2011, and Age provisions in goods and services and associations, effective from October The Government has chosen not to implement some parts of the Act including the Socio-Economic Duty, Equal Pay Reporting and Dual Discrimination. Third Party Harassment and Employment Tribunal recommendations may be removed in due course. It can be viewed in full from legislation.gov.uk/ukpga/2010/15/contents. Author: Jo Hooper, Corporate Equality Officer, Devon County Council. Acknowledgements: guidance produced by the Government Equalities Office and Equality and Human Rights Commission has been used to develop this guide. Images from Photosymbols may not be reproduced. 1

3 What were the main changes? The Act brought together all previous legislation into one Act, making it easier to understand. The Act also harmonised many (but not all) rights across the different protected characteristics. It also introduced some new protections and definitions: Rights have been extended, for example the public sector duties now cover sexual orientation, age and religion/belief. There is new protection for mothers to be able to breastfeed their babies in public, and schools can t discriminate against pupils who are pregnant or new mothers. There are new restrictions on the circumstances in which employers can ask job applicants questions about disability or health. There is a new concept of discrimination arising from disability. There is a change to the definition of gender reassignment, by removing the requirement for a transgendered person to be under medical supervision. There are new powers for employment tribunals to make recommendations which benefit the wider workforce. There will be no actual comparator needed for gender pay discrimination claims. 2

4 Who is protected? It is against the law to discriminate (engage in prohibited conduct ) against someone because of any of the following protected characteristics (whether knowingly or not) - The Protected Characteristics: Age - A particular age (for example, 32 year old) or a range of ages (for example, year olds). Disability - A person who has, or has had, a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. ( Physical covers sensory impairments). Gender reassignment - A person who is proposing to undergo, is undergoing or has undergone gender reassignment (the process of changing physiological or other attributes of sex). Marriage and civil partnership Pregnancy and maternity Race - Colour, nationality, ethnic or national origin. Religion and belief - Religious and philosophical beliefs including lack of belief. 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 - A person s attraction towards someone of the same sex (lesbian or gay), the opposite sex (heterosexual) or to both sexes (bisexual). Definition of disability: Long term means: lasted for at least 12 months or likely to last for at least 12 months. It includes diagnosed conditions that are not currently affecting the person but could return (recurring conditions) or get worse later on (progressive conditions). Successful measures to treat or correct impairments (for example, medication) do not exempt the impairment. It does not apply to sight impairments corrected by normal spectacles/contact lenses. 3

5 Severe disfigurement, HIV (AIDS), cancer and MS are included. Further regulations may determine what is and isn t included. A person no longer needs to demonstrate it s covered by one of eight categories such as mobility or speech. Discrimination arising from disability is: treating someone less favourably because of something connected with their disability and this is not a proportionate means of achieving a legitimate aim. e.g. absence from work, medical conditions or use of aids or an assistance dog. It does not apply if the employer/service provider could not have known the person has a disability. A person who is not disabled is not discriminated against where a disabled person is treated more favourably. Race further information: A person s nationality is what is on their passport, for example British. A person s national origin is based upon their country of birth, for example English. Ethnic origin is based upon groups of people who have a common ancestry who share a distinctive culture, for example Romany Gypsy. Religion further information: Christians are protected because of their Christianity but non-christians are also protected because they are not Christians, irrespective of any other religion or belief they may have or not have. Courts would determine what is or isn t a religion. It need not be mainstream but should have a clear structure and belief system to be counted. Philosophical beliefs, to be included, must: be genuine, not an opinion or viewpoint, a weighty and substantial aspect of human life, attain a certain level of cogency, seriousness, cohesion and importance, be worthy of respect and compatible with dignity and rights of others. For example, racist beliefs such as Nazi/National Front ideologies are excluded. Civil partners further information: Discrimination towards civil partners compared to married couples can also amount to sexual orientation discrimination. Gender Reassignment: Does not have to involve medical intervention, such as a sex change operation or hormonal treatment. 4

6 Why is there an Equality Act? Equality is an issue that can affect anyone and, under the Act, everyone is protected. We don t all start from the same place and there is evidence of disadvantage experienced by certain groups, sometimes triggered by events, for example, when working women have children or when someone acquires a disability. For hundreds of years certain groups of people have been held back from achieving their own potential and denied basic human rights. There are many examples where women, disabled people, lesbian and gay people, and people of different cultures and religions have been denied opportunities or harmed because of who they are. To create a fairer society we need to recognise and respond to different needs. Legislation is therefore used to protect people from discrimination that cannot be objectively justified and to achieve equal outcomes at a faster pace. Equality is not about treating everyone the same; equality is about valuing a person as an equal regardless of their characteristics and treating people according to their needs in order to achieve an equal or fair outcome. An equal society values human diversity, recognising that diversity brings a range of skills, knowledge, values, styles, perspectives and ideas that secure Devon s future as a place where people want to live, work and prosper, and challenges the inequalities that destroy this diversity in our society and organisations. 5

7 What is the scope of the Act? Services and public functions: Covers: goods, services or facilities provided to the public, whether for payment or not, and functions such as law enforcement. Discrimination may apply in relation to: Refusing to provide a service. Poorer terms/lower quality service. Withdrawing a service. Failure to make reasonable adjustments. Part 12 contains specific provisions for transport/vehicle, for example wheelchairs must not be subject to additional charge and trains are covered from General and Specific Exceptions apply to Age. These include: Where another piece of legislation allows for differential treatment such as state benefits, driving or TV licenses, or in the interest of national security or immigration. Charities, clubs or associations for a particular age group. Within financial services, for example in assessing risk when providing insurance, provided it is based upon reliable information. Any kind of concession. Age related holidays (such as SAGA) and residential parks. Asking for proof of age on age-restricted goods. Providing services that target a particular group is lawful if it can be objectively justified and is based upon reliable information. For example, age or gender based health screening. 6

8 Disposal (selling, letting or subletting) of Premises: Discrimination may apply in relation to: Terms of the disposal. Management of premises. Refusing or evicting someone. Under Premises, there is a duty to consider and give consent to reasonable adjustments for disabled tenants including adjustments to common parts such as entrance halls; a process must be followed. There is no requirement to remove or alter a physical feature such as a wall but it could include things like intercom systems and improved lighting. See Schedule 4 of the Act for details of the procedure. With the exception of Race, discrimination does not apply to you if you are a landlord and have a tenant in your home sharing the same space as you. An owner-occupier in a private sale is exempt from sexual orientation and religion/belief discrimination. Short stays and premises providing a service or public function are not covered here as they are covered under services and public functions. For services, public functions and premises, marriage and civil partnership is exempt, and Age only applies to over 18s. For premises, age is exempt. 7

9 Work: Covers: employees and contract workers. Public offices. Members. Discrimination may apply in relation to: o Recruitment o Employment terms (e.g. dress codes, pay) o Opportunities (e.g. training) o Access to benefits (e.g. leave) o Facilities or services o Dismissal or any other detriment o Failure to make reasonable adjustments. Equality Clauses/Rules apply (equal pay). Schedule 9 provides a general exception where a protected characteristic is a genuine requirement of the job this could be for authenticity, privacy, decency, or religious or cultural reasons. Schedule 9 also contains special provisions regarding age in relation to retirement, length of service benefits, national minimum wage levels and provision of childcare benefits. For Members, discrimination may apply in relation to: Access to training or facilities. Failure to make reasonable adjustments. Harassing or victimising a Member in relation to them carrying out official business. Any other detriment (does not apply in relation to appointments/elections to office or committees). 8

10 Education: Covers: maintained, independent and special schools. Discrimination may apply in relation to: Admissions or the way education is provided. Access to benefits, facilities or services. Exclusions or any other detriment. Failure to make reasonable adjustments. Single sex schools are allowed. Authorities are not bound to provide schools for pupils of different faiths or no faith, or of particular age groups. It is not unlawful for a school to have a religious ethos and apply admissions criteria that favours a particular religion. The Act does not prevent acts of worship or observance or the provision of a faith school. Under Education, age and marriage/civil partnership are exempt. Associations: Covers: any group with 25 or more members which has rules to control who can join. The rules may be written down or may be unwritten. It does not matter if the association is run for profit or not, or if it is legally incorporated or not. It can include organisations established to promote the interests of their members such as political parties, charities and private clubs. It does not include things that anyone can join such as a gym or nightclub or informal book club of friends. It does not include Trade Unions, professional or qualifications bodies. 9

11 What are the Public Sector Duties? General Duty (Section 149): A public authority must, in the exercise of its functions, give due regard to the need to (in relation to protected characteristics): Eliminate discrimination, harassment, victimisation and any other prohibited conduct. Advance equality of opportunity (remove or minimise disadvantage; meet people s needs; take account of disabilities; and encourage participation in public life). Foster good relations between people (tackle prejudice and promote understanding). These three parts of the Duty are complementary but must also be considered separately. The protected characteristic of marriage and civil partnership only applies in relation to Work. Public authorities include councils, police, schools, hospitals etc. Case Law has established the following principles in terms of what due regard means: Officers and Members must be aware of the Duty. Things should be properly considered and therefore attention should be given to how things affect people in relation to the protected characteristics. Decision making should be informed making good use of data and engagement/consultation. 10

12 Decisions and actions should be proportionate (not adversely affect one group more than another without objective and reasonable justification). Positive impacts should also be proportionate. Should be applied early on in the decision making process (when things are being considered) so that it has influence, not after a decision is made. Ongoing it is not a one-off exercise and should apply to planning right through to delivery and review. Specific Duties for public authorities: Underpinning the General Duties are Specific Duties which require public authorities to: Publish information that demonstrates how the authority is meeting the General Duty (updating this at least annually). Publish one or more specific and measurable objectives to achieve the General Duty (updating these at least every four years). Publish the information and objectives in an accessible way, so that the public can see for themselves how the authority is performing. Information includes information relating to the protected characteristics of employees and other people affected by policies and practices: Workforce profiles (this can include data about recruitment, training, promotion, flexible working, maternity returners, grievance/issues, dismissal, leavers, service, pay, satisfaction, Members). Only applies where the organisation has more than 150 employees. Service user/community profiles (this can include information about outcomes such as health, safety and wellbeing, achievement such as skills and education, access to services, satisfaction, complaints, feedback, demographics). Impact Assessment There is no longer a specific requirement to conduct an Impact Assessment but, like many organisations, Devon County Council still uses this process and has extended it to cover environmental and economic impacts as well as social/equality ones. The process involves analysing information to identify the effects of policies and practices on different protected characteristics (diversity groups). It can be used to evidence how the council has given due regard to its general duty when planning and making decisions. More information is available from: 11

13 Commissioning and procurement: Public authorities are legally responsible for complying with the general equality duty in procurement and commissioning activities. The Authority remains responsible for functions being carried out by an external provider. A commissioning authority will need to include obligations to meet the duties in contracts, tendering and monitoring processes, where relevant. The law applies regardless of value. Where an external body carries out a public function ( contracted out services ), the external body is responsible but they need to be reminded of their duties. The duty to publish information applies. This means (where relevant) authorities need to specify in contracts what information they need the contractor to collect and provide to show how they are meeting the General Duties. Enforcement: The Equality and Human Rights Commission (EHRC) has powers to monitor and enforce the Duty. Non-compliance with the Public Sector Duties can result in an application to the High Court for Judicial Review (this must be made within three months of the unlawful act). If the court finds that the public authority has acted unlawfully, it may: issue a mandatory order (requiring the public body to do something). issue a prohibiting order (an order preventing the public body from doing something). issue a quashing order (an order quashing the public body's decision). make a declaration. award damages. 12

14 What is Prohibited Conduct? Direct discrimination: Less favourable treatment because of a protected characteristic. (Age is exempt if it is a proportionate means of achieving a legitimate aim). For example: A receptionist refuses to help a Deaf Person who uses sign language. Therefore, a Deaf person is treated worse than a hearing person and it is because they are Deaf Protected characteristic of disability Comparator (less favourable than a person without the disability) Indirect discrimination: A provision, criteria or practice that puts (or would put) a person at a particular disadvantage and is not a proportionate means of achieving a legitimate aim. Or would put means it applies to things that deter someone from participating. A disabled person would need to show that those who share that disability would also be affected. Indirect Discrimination does not apply to pregnancy and maternity, although sex discrimination may apply instead. For example: Provision, criteria or practice A service has a policy of only using small print to save paper. As a result, it does not provide information in large print for people with visual impairments. The disadvantage to someone with a visual impairment outweighs the need to save paper and but the service must also make the information available in large print where needed. It should make information readily available if there is sufficient demand, otherwise it can provide alternative formats on request. 13

15 Harassment: Unwanted conduct which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The victim does not have to have that protected characteristic, nor do they have to be on direct receiving end of the treatment. It includes: Unwanted conduct of a sexual nature; unwanted conduct related to gender reassignment or sex; less favourable treatment because of rejection of, or submission to, the treatment. Unwanted touching Namecalling page 3 pictures disaplayed Offensive jokes Bullying The perception of the victim and reasonableness of conduct (i.e. what would the average person think?) would be taken in to account. In work cases, it includes harassment caused by a third party such as a customer or contractor (employees are not a third party). An employer is liable if they failed to take reasonable steps to prevent the harassment where it has occurred on at least two previous occasions (it does not have to be the same perpetrator). With a view to reduce duplication, the Government is considering removing this provision from the Act because people are protected by other pieces of legislation such as the Protection from Harassment Act 1997 and common law Duty of Care an employer has towards its staff. Victimisation: Treating someone badly ( subjecting to a detriment ) because they have made a complaint in connection with the Act. Their characteristic is irrelevant and complaints must have been made in good faith for victimisation to apply. 14

16 Discrimination by association or perception: For example: Discriminating against someone because they look gay or look disabled, or because they have a gay brother, a Muslim Aunt or Black friend, or because they care for a disabled relative. Therefore, the person does not have to have the protected characteristic for this kind of discrimination to apply. Pregnancy/maternity discrimination: Unfavourable treatment because of pregnancy, including previous pregnancies and still-births of more than 24 weeks. Maternity covers the period of 26 weeks after the birth. In work cases, it covers the period of maternity leave. It also includes unfavourable treatment of a woman because she is breastfeeding. This means that women have a right to breastfeed in public places such as cafes and on the bus. The right applies as long as it is in a reasonable manner (objective and justifiable decency and health and safety requirements can still apply). It is not acceptable to ask someone to move to the toilet or away from other customers because they are breastfeeding. A man cannot claim they are discriminated against in respect of special treatment given to a woman in connection with pregnancy or childbirth. Health and Safety provisions for pregnant women are allowed, for example, refusing to provide a service if it could harm the baby. 15

17 Gender reassignment (absence from work): Treating someone less favourably for being absent from work because they propose to undergo, are undergoing, or have undergone gender re-assignment, for example, not allowing someone to use normal sick leave arrangements. It does not have to be a surgical re-assignment or involve any other medical intervention for it to apply. Enquiries about disability and health: Employers must not ask questions about an applicant s health before offering work (whether conditional or not). Questions may be asked for: Checking ability to participate in tests. Reasonable adjustments. Checking ability to carry out the functions with any adjustments. Diversity monitoring. Positive action purposes. Occupational requirement to have a disability for the job. What is the duty to make reasonable adjustments? Take reasonable steps to avoid disadvantage caused by a provision, criterion or practice or a physical feature that puts a disabled person at a substantial disadvantage compared to a non-disabled person. Take reasonable steps to provide auxiliary aids/service. Provide information in an accessible format. It involves removing or avoiding a physical feature. Special provisions apply for transport. Substantial means not minor or trivial. The Act works alongside Buildings Regulations in respect of physical access. 16

18 Services and Public Functions: Schedule 2 is an ANTICIPATORY DUTY, this means organisations must consider access needs of potential customers; this is best achieved through a disability access audit and/or impact assessment. Services and public functions are not expected to anticipate everything but obvious barriers should be removed, for example: Installing loop systems for people with hearing impairments and providing interpreters for Deaf people who use British Sign Language. Creating disabled parking bays. Installing access ramps, or making alternative entrances or staff assistance clear. Putting up signs saying Assistance Dogs are permitted under a no dogs policy. Making sure information is accessible including a clear and adjustable website, variety of contact methods, use of plain English, use of a good font, and alternative format provision is clear and key information is readily available in large print. Providing disability and Deaf awareness training for staff. Schedule 10: Access for disabled pupils: Local Authorities must prepare Access Strategies to: Increase disabled pupils access to the school curriculum. Improve the physical environment. Improve provision of information. Strategies must be implemented after taking account of pupil s disabilities and be reviewed regularly. Local Authorities must allocate adequate resources to implement the strategy. Schools must develop Access Plans in the same way. 17

19 What is Positive Action? If people who share a protected characteristic share a disadvantage, have needs that are different, or participation is disproportionately low, then it is permissible to take action that is a proportionate means of achieving the aim to: Overcome or minimise the disadvantage. Meet those needs. Enable or encourage participation in an activity. Specific regulations may be made. Positive Action (employers) Positive action is voluntary (not a legal requirement). If you have a candidate who is of equal merit to another candidate, you may recruit or promote them if you reasonably think: the candidate has a protected characteristic that is under-represented, or that people with that characteristic suffer a disadvantage. It can be used at the short-listing stage and therefore the two-ticks disability scheme is still allowed. You should establish a set of nondiscriminatory assessment criteria first. You must not adopt policies / practices that routinely favour certain candidates and action must be proportionate. The Act allows for targeted training/development programmes. It is not lawful to appoint a less suitable candidate just because of their protected characteristic. 18

20 Liabilities The employer is liable for its employees (and people acting on behalf of the organisation) if it did not take all reasonable steps to prevent an unlawful act. It does not matter if the employer knows about or approves the act. Where the employer has taken reasonable steps to prevent an unlawful act, the employee (and agents) can be personally liable (unless instructed and were told the act was lawful and they reasonably believed it to be true). It is unlawful to instruct, cause, assist* or induce someone to carry out a discriminatory act. *the person did not act unlawfully if they were told it was lawful and reasonably believed it to be true. It is a criminal offence, punishable by a fine, for an employer or principal to make a false statement which an employee or agent relies upon to carry out an unlawful act. Reasonable steps could include things like policy, training and adequate supervision. Liability at Work Example An employee racially harasses their colleague by making derogatory comments about them being a Gypsy. The employer is unable to show that they took all reasonable steps to stop the harassment (for example, no training or management intervention when the colleague complained). The employer is liable for the employee s actions. The colleague can claim compensation against the employer in an Employment Tribunal. Employment Tribunal Remedies Make a declaration Award compensation to be paid for any financial loss such as loss of earnings and damages for injury to feelings. Make a recommendation. There is no legal upper limit on the amount of compensation that can be awarded. 19

21 Liability when delivering services Example Because of the person s condition, a librarian refuses to allow a person with an apparent mental health condition to join the library. The organisation and manager has issued clear instructions to their staff about their obligations under equality law, and has provided equality training, and regularly checks that staff are complying with the law. The librarian has acted unlawfully and is personally liable because the employer will have a defence. Court Remedies A claim may go to court. Remedies could include: Damages (including compensation for injuries to feelings). An injunction to stop a person or organisation from acting in an unlawful way. A declaration a statement which says that someone has been discriminated against. The court can also order you to pay the legal costs and expenses of the person bringing the claim. Exceptions etc People who provide care services in their own home such as foster carers are not bound by the provisions. Charities can provide benefits to certain groups in line with their charitable instrument and where objectively justified to prevent/compensate for disadvantage. If providing a specialist service you do not have to provide a generic service (for example, African-Caribbean hairdressing salon does not have to provide other forms of hairdressing but it would be unlawful for them to refuse to braid a White person s hair). Single-sex services can be delivered if providing a combined service would not be as effective, reasonable or practicable, or for religious purposes at a religious venue. Associations may restrict membership if it s their main purpose (for example, a women s group) but cannot restrict membership on basis of skin colour. However it is still unlawful for a private club that restricts its membership to people who share a particular protected characteristic to discriminate against members, associates, or guests because of other protected characteristics. 20

22 Single-sex activities and sporting events, for example, women only fun runs, are allowed. It can be lawful to restrict transsexual people from single sex sporting if would be unfair. It can also be lawful to restrict in relation to provision of single sex services if this is objectively justified (e.g. it could be lawful to exclude a transsexual who was formerly male from female sexual assault counselling). General and specific exceptions apply in relation to age discrimination and the provision of services and public functions. Further information In-house support for Devon County Council staff and Members: equality@devon.gov.uk Mobile/SMS: Telephone: Please note that the council cannot provide legal advice to members of the public or businesses, the Council has no enforcement role under the Equality Act this role is held by the Equality and Human Rights Commission who may be contacted if you have a complaint. 21

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