The Equality Act 2010 a guide for employees

Transcription

1 The Equality Act 2010 a guide for employees

2 The Equality Act 2010 a guide for employees This factsheet is part of our Your rights range. It is written for people with hearing loss who are in work or looking for work and who want to know about the Equality Act The Equality Act brings together and replaces previous equality legislation such as the Disability Discrimination Act 1995 (the DDA). It updates the law and strengthens it in important ways. You can find an introduction to the Equality Act in our factsheet: The Equality Act a summary guide. This factsheet gives you information about the employment part of the Equality Act and some other things that may be helpful. We will tell you what to do if you think you are not being treated fairly by your employer. The employment part covers work relationships that are wider than employment in the legal sense (for example, partnerships, contract working or job applications) but we use the words employer and employee for convenience. Read this factsheet to find out: What is the Equality Act for? Who has rights under the Equality Act? Who is responsible if someone discriminates against me? What type of employment does the Equality Act cover? Do I have to tell an employer about my hearing loss? What if I become disabled while I m working, or my hearing gets worse? What is unlawful under the Equality Act? When does discrimination arise in employment? What else is covered by the Equality Act? What is the Public Sector Equality Duty? What is positive action? What is the Human Rights Act? I think I ve been discriminated against what should I do now? Where can I get further information? If you would like this factsheet on audio tape, in Braille or in large print, please contact our helpline see the front cover for contact details. Disclaimer This information is not legal advice, and you should not rely on it as such. You should consider taking independent legal advice from a solicitor or other qualified legal adviser. Action on Hearing Loss does not accept any liability for any actions or failures to act, which you or anyone else may or may not take on the basis of the information contained in this factsheet. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

3 What is the Equality Act for? The Equality Act protects people from discrimination because of certain protected characteristics. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation. This factsheet relates to disability. One of the aims of the Equality Act is to make sure that people who have disabilities, including people who are deaf, have equal opportunities in employment. The Equality Act applies to England, Wales and Scotland but not Northern Ireland, where the DDA still applies. Most of the Equality Act came into force on 1 October Who has rights under the Equality Act? The Equality Act gives rights to people who have, or have had, a disability. This means a physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day to day activities. If you met the definition of disability under the DDA, you will be covered under the Equality Act. Physical or mental impairment is not defined, but it includes a wide range of conditions. Sensory impairments loss of sight or hearing are physical impairments and are covered. In some circumstances, tinnitus is also covered by the definition. For detailed information on the definition, please see our factsheet The Equality Act what is meant by disability? In certain circumstances the Equality Act also protects people who are associated with a disabled person or are mistakenly thought to be disabled. This is explained in Discrimination by association or perception on page 6. People who are not disabled may also be covered by the Equality Act if they are treated badly because they have made a complaint under the act or helped someone to do so. There is more information about this in What is victimisation? on page 9. The Equality Act helps people who are discriminated against on any of the other grounds mentioned above. Contact the Equality and Human Rights Commission (EHRC) if you want more information about those grounds (see Where can I get further information? on page 19). Who is responsible if someone discriminates against me? Your employer is responsible. They are liable (legally responsible) for ensuring that people who work for them who are disabled do not experience discrimination. They are also liable for the actions of their employees or others who work in their business but are employed by someone else (the law calls them agents). This means the employer is responsible if you are discriminated against by your The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

4 colleagues. They may also be responsible for discrimination by other organisations that are working on their behalf. Example liability If your employer has a contract with a doctor to do their medical assessments and the doctor discriminates against you, then your employer is liable. What type of employment does the Equality Act cover? The Equality Act applies to full-time, part-time and temporary employment, and to self-employment and work experience. It also extends to situations where someone applies for a job. In some situations, it can also cover what happens after someone has left a job. Most jobs and occupations are now protected by the Equality Act. Only service in the armed forces is not covered. It does not matter what size the employer is. The Equality Act also covers: Occupations such as police officer, barrister, partner in a firm and office holders (such as judges and members of non-departmental public bodies). Membership of trade organisations. Employment services such as employment agencies. Qualifications bodies for example, the Nursing and Midwifery Council. Local councillors are also covered by the Equality Act when they are carrying out their official business, which includes local authorities making reasonable adjustments (see page 7). The Equality Act does not apply to political appointments, local authority cabinet posts or committees. If volunteers have a contract personally to do work for someone, they may be covered as if they were employees. It s also possible that someone providing a volunteering opportunity is providing them with a service. In that case they would be protected under another part of the Equality Act. You can get more information about volunteers and the Equality Act from the EHRC. Do I have to tell an employer about my hearing loss? No, not if you don t want to. Employers are now banned from asking questions about your health or disability before a job offer, except in certain situations. There is more information about this on page 10. If you are specifically asked about your hearing loss in these exceptional situations for example, if the employer wants to see if you need a reasonable adjustment for an interview it is a good idea to tell them. The Equality Act says that an employer does not have to make a reasonable adjustment if the employer did not know about your disability and could not reasonably be expected to know about it. And knowledge of your hearing loss is also relevant if you re treated unfairly because of something connected to it. It won t count as discrimination unless the employer knew about it. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

5 What if I become disabled while I m working, or my hearing gets worse? If you are concerned about carrying on your job, or about difficulties you are having, you should contact a Disability Employment Adviser (DEA) at your local job centre. The DEA: can tell you about the Access to Work scheme. may be able to arrange for an assessment of your work or skills can arrange for rehabilitation. You could also contact our employment advice service, who can provide information and help our advisers have experience of these situations and can assist you and your employer. Contact our helpline for more details (see front page). You may also need your employer to make reasonable adjustments to your workplace or job. This could include providing equipment, or time away for you to adjust to your new situation. We explain reasonable adjustments in more detail on page 7. Example reasonable adjustment Because of your hearing loss, you want to learn lipreading. However, your local college only offers lipreading classes during working hours. It may be a reasonable adjustment for your employer to allow you time off to attend the classes. What is unlawful under the Equality Act? The Equality Act protects disabled people from certain kinds of unlawful behaviour. These are called discrimination (including the failure to make reasonable adjustments), harassment and victimisation. It s also unlawful to order or help someone to behave in these ways. What does discrimination mean? There are different forms of discrimination, depending on how it arises. As well as covering things that people (or organisations) do to disabled people, it also includes things that aren t done when they should be failing to make reasonable adjustments for disabled people when they re required. Direct discrimination This is where, because of disability, you re treated less favourably (worse) than another person in similar circumstances. The disability itself is the reason for the treatment, which is often based on prejudice or assumptions. It hasn t or wouldn t have happened to another person who is similar to you except that they do not have hearing loss. For example, that person has the same skills as you. This person is called a comparator and does not have to be a real person. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

6 Example direct discrimination A person who is deaf does not get an interview for a job because the employer thinks that they won t be able to communicate with colleagues. This is likely to be direct discrimination. Discrimination by association or perception Direct discrimination includes worse treatment because of your association with a disabled person, for example as the carer or friend of someone who is deaf. It also covers worse treatment because you re mistakenly thought to have a disability (this is new under the Equality Act). Example direct discrimination by association An employee who has a deaf child is not considered for promotion because her employer assumes she will not be able to cope with the added responsibility. Discrimination arising from disability This is where you re treated unfavourably (you re put at a disadvantage) because of something connected with your disability rather than because of the disability itself. But it s not discrimination if it can be objectively justified (we explain this below). This kind of discrimination only applies if the employer knows you have hearing loss or could reasonably have been expected to know. This replaces previous protection under the DDA which became ineffective after a court ruling. Example discrimination arising from disability An employee who is partially sighted is dismissed because he cannot work as quickly as a nondisabled colleague. The dismissal (the unfavourable treatment) is not because of his disability but because of something arising from it his slower productivity. Objective justification This means there was a good reason for what the employer did, and they acted fairly, reasonably and in a balanced way (for example, they looked at whether there was a less discriminatory alternative). If the employer can justify the treatment in this way, it is not against the law. The Equality Act calls this a proportionate means of achieving a legitimate aim. Only disability-related discrimination and indirect discrimination (see below) can be justified. Indirect discrimination This is where a policy, rule or practice is applied to everyone, but it has a particular disadvantage for disabled people, and you are personally affected. But it s not discrimination if it can be objectively justified, as explained above. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

7 Example indirect discrimination An employer s induction course consists of a video followed by a discussion. The video is not subtitled. This means that an employee who is deaf cannot participate fully in the induction. This is new for disabled people though it is partly covered by the duty to make reasonable adjustments (see below). Failure to make reasonable adjustments The Equality Act requires reasonable adjustments (changes) to be made where you re put at a substantial disadvantage compared with non-disabled people. If reasonable adjustments are not made, that s discrimination (see next section). What is the duty to make reasonable adjustments? The duty requires reasonable adjustments to be made if you re put at a substantial disadvantage by: A provision, criterion or practice (the way things are done). A physical feature (for example, the layout of office furniture). The absence of an auxiliary aid or service (such as a portable induction loop or an interpreter). Substantial means more than minor or trivial. The employer must take reasonable steps to avoid the disadvantage or to provide the auxiliary aid or service. A provision, criterion or practice includes things like policies, rules and practices. Avoiding the disadvantage in relation to a physical feature includes removing the feature, altering it or providing a reasonable means of avoiding it. The requirement to provide auxiliary aids or services is particularly important for people with hearing loss. The new duty emphasises the importance of providing information in accessible formats, and makes it clear that you can t be charged for adjustments. Example reasonable adjustment A reasonable adjustment could be any of the following: Giving an address, not just a phone number, to allow people who are deaf to requests for an application pack. Using clear, accessible English in the application pack and job description. Adjusting the interview room layout and using good lighting to help everybody see each other clearly (important for signing and lipreading). Allocating small duties to another colleague who is not deaf. Booking communication support (such as sign language interpreters) for meetings. Giving people time off for audiology appointments. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

8 What is a reasonable adjustment? The Equality Act says that what is reasonable depends on the circumstances of the particular situation. The employment code of practice (the code) lists some of the factors that may be relevant: Whether making the adjustment would prevent the disadvantage. How practical it is to make the adjustment. The financial and other costs of making the adjustment and the extent of any disruption. The extent of the employer s resources, such as money or equipment. The availability of financial or other assistance to make the adjustment, such as funding or advice through the Access to Work scheme, or advice from disabled organisations. The type and size of the employer (what may be reasonable for a large company may not be reasonable for a small one). Employers only have to make reasonable adjustments if they know or ought to know about your disability. What happens if a lease prevents changes to premises? If your employer does not own the office or work premises, but rents them from a landlord, the landlord cannot unreasonably refuse permission for the premises to be altered to accommodate you for example, by changing the entry intercom to make it more accessible. However, the landlord may attach reasonable conditions to giving permission, such as returning the premises to the original condition when your employer leaves. If your employer does not make a reasonable adjustment because the landlord unreasonably refuses permission for the premises to be altered, you could take your employer to the employment tribunal, and either you or your employer could ask the tribunal to make the landlord a party to the case. This means that the landlord would have to go to the tribunal as well. Reasonable adjustments if you are already working If you are already working, your employer must make adjustments for you. Example potential reasonable adjustments by an employer Modify a job to take your needs into account. Move you to an office with good acoustics. Provide communication support for meetings, such as BSL interpreters. Install equipment, such as amplified telephones or flashing-light fire alarms. Provide a portable induction loop for you to use while you are on a training course away from the office. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

9 You and your employer may be able to get financial help to pay for reasonable adjustments from the Access to Work Scheme (see page 13 for more details). What is disability harassment? This is unwanted conduct related to disability which has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for you. It can be one of these two it doesn t have to be both. If the intention was to do one of these, that will be harassment. If the effect of the conduct is being looked at, your feelings are important, as well as the other circumstances, and whether it s reasonable to regard it as harassment. Example harassment The colleagues of a man who is profoundly deaf continue to make jokes about sign language and make mocking gestures. The worker finds this behaviour offensive and upsetting. This is likely to amount to harassment. You re now also protected if you re harassed because you associate with someone who is deaf or because your employer wrongly thinks you re deaf. And you can complain of behaviour that you find offensive even if it s directed at someone else (a colleague, for instance), as long as there s a connection with disability. What is victimisation? This is where you re treated badly because you have done certain things (or you re suspected of doing them). They include: Taking a case under the Equality Act. Giving evidence or information in someone else s case under the Equality Act. Alleging that an employer or someone else has done something against the Equality Act The protection applies whether or not you re disabled. You can t claim victimisation if you ve acted in bad faith for example if you deliberately say something untrue. Example victimisation A deaf woman is turned down for a post because the employer wrongly assumes she would not be able to understand instructions. She wins her case against the employer. Later the same employer advertises a vacancy for a similar job. The woman applies again but is rejected because she has previously made a claim. This is victimisation. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

10 When does discrimination arise in employment? The Equality Act covers what happens before someone starts a job (for example, during recruitment) as well as what happens while they are employed. In some situations, it can also cover situations that take place after someone has stopped working for a particular employer. Recruitment and selection It is unlawful for an employer to discriminate against you: in the arrangements they make to decide who to employ this means in recruitment and selection in the terms on which they offer you employment by not offering you employment. It is also unlawful for an employer to victimise you in this way or harass you. They must also make reasonable adjustments for you. Example unlawful recruitment An advert says that you must dial a voice telephone to ask for an application pack. This is likely to be unlawful because it is not accessible to people with hearing loss. Example unlawful terms of employment An employer offers lower pay to an applicant who is deaf than he would offer another person who is not deaf. Or the employer says that the probation period has to be longer. Example unlawful failure to offer employment An employer does not offer a job or work placement to an applicant who is deaf, even though that applicant is the best person for the job. Arrangements include advertisements for jobs. So it is unlawful for employers to publish adverts inviting applications for jobs, training or other benefits if those adverts are discriminatory. The Equality Act applies to adverts whether published by the employer or on its behalf (for example, in a newspaper). If necessary, the EHRC can take legal action to stop these adverts. Can I be asked questions about my hearing loss? The Equality Act limits the circumstances when an employer can ask about your health or disability before they ve offered you a job. This includes questions about previous sickness absence. This is new protection. Up to this point, they can only ask health-related questions to: see if you need reasonable adjustments for an interview or other assessment for the job (such as a sign language interpreter or more time in an interview) see if you would be able to carry out a function that s essential to the job (with any reasonable adjustments in place) The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

11 monitor diversity among job applicants (for example, to see if its adverts are reaching disabled people). This must be separate from the application form take positive action to assist disabled people (such as a guaranteed interview scheme). Positive action is explained on page 15 ensure you have a particular disability (such as deafness) if that s a requirement of the job vet applicants for national security purposes (for example, a job in a government department dealing with sensitive information) Example adjustments for interview A company is recruiting for an administrator. It ensures that no health questions are included in the application form. The company asks applicants if they need reasonable adjustments for the interview but they do not take this information into account when deciding who to appoint. Example specific disability required A counselling service for people with mental health conditions requires a counsellor who has personal experience of this and advertises for people with such experience. It can ask candidates at interview to confirm that they have this condition. An employer can t get round the restrictions by referring you to an occupational health practitioner to ask questions. They apply to anyone who works on behalf of the employer. Employers can make job offers conditional on a satisfactory health questionnaire or health check if that s what they require of all applicants for example, to see if you are eligible to join a health insurance scheme. But they can t single you out just because you have hearing loss unless they can show that your hearing loss genuinely makes it difficult for you to do the job. They mustn t use the information to discriminate against you. The employer must also consider whether there are reasonable adjustments that would enable you to do the job. Only the EHRC can enforce this provision. But if an employer asks you a question that isn t allowed and you think you ve been turned down just because of your disability, you could bring a claim in an employment tribunal for discrimination. The employer would then have to show that they hadn t discriminated. During employment It is unlawful for an employer to discriminate against you: in your terms of employment (the terms and conditions of employment, which are often in your contract) in the way they give you access to opportunities for promotion, transfer, training or other benefits by not giving you access to these opportunities by dismissing you or subjecting you to any other detriment (something that changes your position for the worse or puts you at a disadvantage) that is not covered by the other categories The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

12 It is also unlawful for an employer to victimise you in this way or harass you. They must also make reasonable adjustments for you. Example unlawful discrimination regarding opportunities No promotion, even though the employee who is deaf is the best candidate. No access to training courses. Refusal to pay a bonus. Withholding of another benefit, such as gym membership. Harassment includes harassment by third parties. So an employer is also responsible if you re harassed by a third party (such as a customer or client of the employer) where this has happened at least twice before and the employer, although aware of it, has not taken reasonable steps to prevent it. (This applies where you re a job applicant as well.) The government has announced plans to consult on removing this from the Equality Act, even though it s now in force. After employment has ended If you have stopped working for a particular employer, the Equality Act says that it will still be unlawful for your former employer to discriminate against or harass you. And if you re victimised after the employment has ended, you re still protected by the act. You would have to show that the discrimination or harassment arises from the previous employment and is closely connected to it. Example discrimination after employment Dave is hard of hearing and used to work for company X as a sales manager. He asks his previous employer for a reference. In the reference, the employer is negative about his hearing loss. This is likely to be unlawful discrimination. The duty to make reasonable adjustments also applies to post-employment situations when you re put at a substantial disadvantage dealing with your former employer. Example reasonable adjustment after employment Dave s previous employer turns down his request for a reference. When Dave wants to discuss this with the previous employer, the employer is likely to have to provide communication support. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

13 How can Access to Work help? Employers may be able to get financial help to pay for reasonable adjustments from the Access to Work scheme. This can include communication support for job interviews. You or your employer should get in touch with an Access to Work business centre as soon as possible before you need the support. You can find the address of the centre nearest to you by searching the Directgov website. What else is covered by the Equality Act? If you are a contract worker and you work for an employer who sends you to work for another organisation, both your employer and the other organisation have to comply with the requirements of the Equality Act. It is unlawful for an employer to prevent you from joining an occupational pension scheme, or limit the benefits that you get under the scheme, unless the cost of providing the benefit or pension to you is much more than providing it to someone without a disability. Where organisations provide group insurance through an employer, such as private health insurance, the employer is responsible for ensuring that it does not discriminate against you. Trade organisations The Equality Act also covers trade organisations, including trade unions, professional organisations and employers associations. Trade organisations cannot discriminate against you: in the arrangements they make for deciding who can be a member. This refers to the way that the organisation selects its members in the terms on which they admit you to membership. For example, asking you to pay a higher subscription than a hearing person is likely to be unlawful by not accepting you as a member. Once you have become a member, the organisation is not allowed to discriminate: in the way it gives you access to opportunities for receiving benefits by not giving you access to these opportunities by taking away your membership or changing your terms of membership by subjecting you to any other detriment (changing your position for the worse or putting you at a disadvantage). Trade organisations must not victimise you in this way, or harass you. They also have to make reasonable adjustments for members and applicants for membership who have hearing loss. For example, they might provide an induction loop in a meeting room and check if any member needs communication support, such as a lipspeaker or a BSL/ English interpreter. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

14 Employment services (including work placements) The Equality Act applies to employment services. These include vocational training, vocational guidance, services to help people find work (such as employment agencies and Jobcentre Plus), and services to supply employers with people to do work (such as employment businesses). Vocational training includes work experience that someone does as part of their training, such as an NVQ in plumbing. Work placements are therefore employment services. Providers of employment services have obligations under the Equality Act similar to those on employers. The Equality Act says that an employment service provider cannot discriminate against you: in the arrangements it makes for selecting who should be offered the service (this would include the interview process) in the terms on which it offers the service by not offering to provide the service. And when it provides the service it must not discriminate against you in the terms on which it provides the service by not providing the service by ending the service by subjecting you to any other detriment. An employment service provider must also not victimise you in this way or harass you. An employment service provider has a duty to make reasonable adjustments. This is an anticipatory duty (which means the employment service provider has to think ahead about adjustments that might be needed by people with a range of disabilities, such as hearing loss). But this doesn t apply to vocational training (training for work or work experience) where the duty is the same as in employment. Example unlawful refusal of work placement A student who is deaf is refused a work placement in a nursing home because the provider believes that he is not able to communicate with others. This is likely to be unlawful. Example unlawful terms of placement A company offers students two-month placements. But it offers a student who is deaf a two-week placement because the company thinks that she will be unable to cope with two months. This is likely to be unlawful. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

15 Example subjecting an employee who is deaf to any other detriment A website company offers work placements. People on placements do a range of things, including research and testing. Andy is deaf and uses BSL and is only given photocopying to do on his placement because the supervisor does not think he can do anything else. This is subjecting Andy to a detriment and is likely to be unlawful. Example unlawful ending of placement A student who is deaf has to take a morning off to go to an audiology clinic for new hearing aids. The placement provider terminates the placement because of the time off. This is likely to be unlawful. The placement provider (an employment service provider) has to make the reasonable adjustments. The college or training provider is covered by the education provisions (Part 6 of the Equality Act). What is the Public Sector Equality Duty? The Equality Act introduces a new Public Sector Equality Duty (the equality duty) on public authorities in Great Britain, which replaces the Disability Equality Duty (DED). It came into force on 5 April The duty requires public authorities such as councils, the NHS and the police, and others with public functions, to have due regard to certain aims in their decision-making. One aim is to advance equality of opportunity. This means public bodies must consider the needs of all individuals in their day-to-day work so that equality issues influence what they do, including how they act as employers and develop policy. The new duty recognises that disabled people s needs may be different from others, so public bodies have to consider this when making decisions; for example, through reasonable adjustments or positive action measures (positive action is explained below). The government can also put specific duties on certain public authorities to help them perform the new duty more effectively. The equality duty is connected to the rights and duties that we ve explained in this factsheet. You can use it to help challenge discrimination by public authorities. You can get information from the EHRC (see page 19) and from our factsheet about the equality duty. You can t enforce the equality duty against a public authority (only the EHRC can do that) but it may be possible to challenge a public body s actions (or lack of action) by asking the High Court for a judicial review. What is positive action? The Equality Act allows employers to take positive action to promote equality of opportunity. They can take positive steps to help groups of people who are disadvantaged, or have particular needs, or The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

16 are under-represented in particular activities. It must be proportionate to what it is trying to achieve. That means it is appropriate and other action would be less effective. Positive action is voluntary employers are not required to do it. The law allows disabled people to be treated more favourably than non-disabled people. But employers can now use positive action to give preferential treatment to people with a particular disability to achieve equality of opportunity between disabled people with different impairments. Example the Equality Act s protection of disabled people only An employer offers a disabled person an interview if they meet the minimal selection criteria, but another person (who is not disabled) who also met the minimal criteria does not get an interview. In these circumstances, the non-disabled person cannot complain about discrimination. Example positive action A large employer has several disabled staff among its workforce but those with hearing loss are noticeably absent from senior positions. The employer provides a training and development programme and mentoring scheme to improve their chances of getting promotion. Positive action in recruitment and promotion The Equality Act also gives employers the option, when faced with candidates of equal merit, to choose a candidate from a group that is disadvantaged or under-represented (for example, a male teacher in a primary school where there are no male staff). This was introduced on 6 April It enables the employer to diversify the workforce. Using positive action as a tie-breaker is entirely voluntary. Employers can also use the process to increase the participation of people with a particular form of impairment. Example tie-breaker An employer has to choose between three candidates of equal merit for a post. One has a mobility impairment, another is deaf and the third has no form of disability. People who are deaf are underrepresented within the organisation. The employer therefore selects the candidate who is deaf. This would not be unlawful discrimination against either of the other two candidates. What is the Human Rights Act? The Human Rights Act 1998 gives everyone, including disabled people, additional rights. It applies to public authorities; for example, local or central government or an NHS Trust, and other organisations that carry out public functions. Depending on the circumstances, you may be able to bring a claim under both the Human Rights Act and the Equality Act. Even if you do not have a claim under the Equality Act, you might still have a case under the Human Rights Act. There is a time limit that applies here too. You have to bring a claim within one year of the date when you believe your rights were breached (but if you apply for judicial review, you only have three months). The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

17 If you make a discrimination claim under the Equality Act, the court must consider whether the Human Rights Act is relevant to any part of the case. It has to interpret the Equality Act in line with your rights under the Human Rights Act, if it can. For more information, see our factsheet The Human Rights Act. I think I ve been discriminated against what should I do now? There are several things you can do, including taking a case to the Employment Tribunal. The tribunal can award you compensation and make recommendations about how the employer should act in the future. Employment Tribunal important information If you want to take a case to the Employment Tribunal, you have to do so within three months of the date when the discrimination happened. We give you more information about this below. It is very important that you write down everything that has happened, including dates and times, and also keep all the papers for example, copies of letters, s or faxes that you have sent to your employer. Step 1: Talk to your employer You should first talk to your manager about the issue. If this does not work, try speaking to the human resources department, or use your internal complaints or grievance system. The law says that, in most situations, you have to use a grievance procedure before you can take a case to the Employment Tribunal. This requirement applies to most disability discrimination situations. You can get more information about the rules on grievance procedures from the Arbitrations and Conciliation Service (ACAS). Their contact details are on page 20. Step 2: Request information If you still can t solve the problem, or you don t want to talk to your manager about it, you can request information from your employer about the reason for the treatment you re complaining about. This is called the procedure for obtaining information. The replies you get will help you decide whether or not you have been discriminated against. There are standard forms for asking and answering questions. You can ask questions without using the form, but it is useful. You can get copies, and guidance on the procedure, from the Government Equalities Office website, the EHRC, Jobcentre Plus or some local Citizens Advice office. The questions must be submitted before making a claim to the tribunal (within three months of when the discrimination happens). If you do not have time to send the questions to your employer before applying to a tribunal, you can do it later provided it is within 28 days of applying to the tribunal. The employer doesn t have to respond but if they don t reply within eight weeks, or give evasive answers, a tribunal can draw its own conclusions, which may be that the employer has discriminated against you. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

18 Step 3: Take your claim to the tribunal If you aren t happy with the reply, or you don t get a reply from your employer, you can send an application (Form ET1) to the Employment Tribunal Service, giving details of your complaint. You can get this form from the Directgov website or the tribunal. You must do this within three months of when the discrimination happens. This would be the date when, for example, you were dismissed or not offered a job. If there were a number of discriminatory acts, such as harassment over a number of months, then the last instance of this must be within the three-month period. If you go over this time limit, you may not be able to start your case. However, if the tribunal chooses, it will occasionally hear an application after three months of discrimination taking place. You would have to show that you had a good reason for not starting your case in time. You would also have to show that it was just and equitable to allow you to start your case. That means that your case is so important that the employer does not have to be protected against late claims. If you want to bring a claim after the time limit, you should seek legal advice. Once the application has been submitted, your employer will be asked to provide a defence or response. A copy of the ET1 is also sent to ACAS. ACAS will try to settle the case before the tribunal hearing. If a settlement is agreed, the tribunal process ends, provided the people involved keep to the agreement. You may need to have used this grievance procedure before you can take a case to the tribunal. If you are close to the end of the three-month period, you could start proceedings anyway. Step 4: Tribunal hearing If there is no settlement, the case goes to a tribunal hearing. The tribunal is a service provider and so has to make reasonable adjustments to enable you to use its services. You should tell the Employment Tribunal if you need communication support; for example, if you want a BSL/ English interpreter or a speech-to-text reporter. The tribunal has to pay for these reasonable adjustments. You can get more information about these duties in our factsheet The Equality Act 2010 a guide for service users. If the tribunal agrees that you have been discriminated against, it can: say that you have suffered unlawful discrimination order the employer to pay you compensation. Compensation can be awarded for actual loss, such as loss of earnings, including benefits such as pension rights. However, you have to try to reduce your loss, for example, by looking for other work. You may also be given compensation for hurt feelings. There is no limit to how much compensation you can be awarded. The court can t award you compensation for indirect discrimination that was unintentional, unless it first considers the other remedies recommend that the employer take some action for the benefit of the employee or (which is new) the wider workforce, such as training all staff about the organisation s bullying and harassment policy. The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

19 Step 5: Employment Appeal Tribunal If you think that the tribunal has applied the law wrongly you may take your case to the Employment Appeal Tribunal. You do not need legal representation at a tribunal, but it is a good idea to seek legal help. You can ask for help from your trade union, Citizens Advice, a law centre or a solicitor. Some of this help is free, some is not. Where can I get further information? Citizens Advice The Citizens Advice service helps people resolve their legal, money and other problems by providing free information and advice, and by influencing policy makers. See your phonebook or search their website for your local office: (England and Wales) (Scotland) (Northern Ireland) Community Legal Advice A free and confidential service paid for by legal aid. Their helpline can give you details of your local advice centre providing help in discrimination cases. See the website to find out how you can use a webcam to talk to an advisor in BSL. Legal Services Commission, 4 Abbey Orchard Street, London SW1P 2BS Helpline Textphone ts/dg_ The Equality and Human Rights Commission (EHRC) Provides free advice to people who have been discriminated against, and may provide representation. They can also help you try to resolve problems with employers without going to court. They publish Codes of Practice on the Equality Act, such as the employment code. These explain the Equality Act in more detail. They are not legally binding, but courts and tribunals have to take account of the codes where they are relevant. They also publish a wide variety of practical guidance and advice on the Equality Act. England: Freepost RRLL-GHUX-CTRX, Arndale House, Arndale Centre, Manchester M4 3EQ Helpline Textphone Fax Scotland: Freepost RRLL-GYLB-UJTA, Optima Building, 58 Robertson Street, Glasgow G2 8DU Helpline Textphone Fax Wales: Freepost RRLR-UEYB-UYZL, 3rd Floor, 3 Callaghan Square, Cardiff CF10 5BT Helpline Textphone Fax The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May

20 ACAS ACAS (Advisory, Conciliation and Arbitration Service) provides up-to-date information and independent advice. They have regional offices across England, Wales and Scotland. Check their website or call them to find out the address of your regional office. Telephone Textphone The Disability Law Service (DLS) Provides free legal advice to disabled people. Ground Floor, Cavell Street, London E1 2BP Telephone Textphone Fax The Government Equalities Office Information (including summary guides and quick start guides) under Equality Act 2010 : What do I need to know? and FAQs. Law centres Law centres provide free advice and representation. The Law Centres Federation (LCF) can give you the details of your local law centre. Telephone Fax info@lawcentres.org.uk Directgov Provides information about a wide range of topics, including employment, discrimination and benefits, such as Access to Work. It also gives links to online government services and to organisations that can give you advice and support. Jobcentre Plus: Telephone Textphone Further information from Action on Hearing Loss Our helpline offers a wide range of information on many aspects of hearing loss. You can contact us for further copies of this factsheet and our full range of factsheets and leaflets see the cover page for contact details. Action on Hearing Loss Information, May 2011 The Royal National Institute for Deaf People. Registered Office: Featherstone Street, London EC1Y 8SL. A company limited by guarantee registered in England and Wales No , Registered Charity Numbers (England and Wales) and SC (Scotland). The Equality Act 2010 a guide for employees, Action on Hearing Loss Information, May