Equality Act Equality Act 2010 summary April 2011

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1 Equality Act Introduction/Background 2. Forms of Discrimination 3. Protected Characteristics 4. Examples of Discrimination 5. Equal Pay 6. Public Sector Duties 7. More Info 1. Introduction The following is a summarised version of the Equality Act 2010 (the Act) and the additions and changes it has made to existing equality law. It addresses equality issues arising both in and out of the workplace. This summary is a guide only and should not be used to address any legal concerns you may have. Background Equality law has existed for over 40 years and over this time it has developed piecemeal through cases and legislation. The Equality Act brings together these fragmented laws and addresses some of the anomalies caused by such an approach. The Act replaces all existing equality legislation including: The Race Relations Act 1976 (amended 2000) The Disability Discrimination Act 1995 (amended 2005) The Equal Pay Act 1970 The Sex Discrimination Act 1975 The Employment Equality regulations 2004 The Equality Act 2006 Until such time as the different sections of the Act are brought into force, the existing equality legislation relating to that section remains in force. The timeline for the different parts of The Act to be brought into force is currently as follows: October 2010: The main sections of the Act relating to employment, equal pay and services, public functions and associations, education (further and higher education) comes into effect, replacing relevant sections of current anti-discrimination legislation covering these areas. April 2011: The general public sector equality duty comes into effect, replacing the current public sector duties in the Race Relations (Amendment) Act 2000, the Disability Discrimination Act 2005 and the Equality Act The specific duties will be introduced later in

2 2012: The ban on age discrimination in provision of goods, facilities, services and public functions comes into effect. The Act covers England and Wales, and Scotland with the exception of section 190 (improvements to let dwelling houses) and Part 15 (family property). The Act does not apply in Northern Ireland, with the exception of section 82 (offshore work), section 105(3) and (4) (expiry of Sex Discrimination (Election Candidates) Act 2002) and section 199 (abolition of presumption of advancement). The Equality Act introduces a new term for those affected by discrimination, protected characteristics. This includes age, disability, race, religion or belief, sex and sexual orientation. These characteristics are recognisable as being covered by previous equality legislation however the Equality Act introduces three new characteristics gender reassignment, marriage and civil partnership status and pregnancy and maternity. Through these refined definitions and new characteristics the Equality Act strengthens particular aspects of equality law and provides a more cohesive approach to equality law for both employees and employers to follow. The following information introduces and defines the different varieties of discrimination, the definition of protected characteristics and details of what constitutes a particular protected characteristic and finally provides examples of discrimination to illustrate these definitions. The Equality Act became law in October

3 2. Forms of Discrimination (A list of examples can be found on page 6) Direct Discrimination A person is treated less favourably than another person because of a protected characteristic. Associative Discrimination Direct discrimination against someone because they associate with another person who has a protected characteristic. Discrimination by Perception Direct discrimination against someone because others think they possess a particular protected characteristic. Discrimination arising from Disability Direct discrimination because of something arising in consequence of a person s disability; and it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim. Indirect Discrimination Can occur when you have a rule or policy that applies to everyone but disadvantages a particular protected characteristic. Harassment Occurs when an employee finds another persons behaviour offensive (That which constitutes offensive behaviour is down to the perspective of the individual) even if the offensive behaviour is not directed at specifically at them. Harassment by a Third Party Occurs when a member of staff is being harassed by an individual or individuals outside of the business or organisation. Employers are potentially liable for harassment of their staff by people they don t employ, especially in cases where the harrasment is a recurring incidient (this could be two unconnected instances of harrasment). Victimisation Occurs when someone is harassed because they have made/supported a complaint or grievance under the Equality Act. 3

4 3. Protected characteristics 4 The Equality Act identifies and defines nine separate characteristics that are to be protected from all forms of discrimination. It terms these characteristics as protected characteristics. Included in the list are six protected characteristics established in previous legislation (Race, Disability, Religion or Belief, Sex, Sexual Orientation and Age) as well as three additional protected characteristics derived from their former position in the Sex Discrimination Act. These new characteristics are marriage and civil partnership status, gender reassignment (transgender) and pregnancy and maternity. As a result people possessing these characteristics benefit from increased protection against discrimimnation than they did under the Sex Discrimination Act alone. The following section offers a definition of each protected characteristic as well as examples of discrimination both in and out of work which could have an impact upon that characteristic. Race Under the Equality Act race includes nationality, colour and/or ethnic or national origins. Race can also include some religious groups for example Jewish people may identify themselves as either belonging to a religion, a race or both. This means that in many cases race is self defined. Many government bodies and legislation when talking about issues of race especially in reference to minority groups refer to black minority and ethnic groups (BME) use of this term generally includes groups that are not the majority so as well as including categories such as black African Caribbean or Asian, would also include white minority communities such as Eastern European. Disability Disability has a broad meaning. It is defined as a physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. Substantial means more than minor or trivial. Impairment covers, for example, long-term medical conditions such as asthma and diabetes, and fluctuating or progressive conditions such as rheumatoid arthritis or motor neurone disease. A mental impairment includes mental health conditions (such as bipolar disorder or depression), learning difficulties (such as Dyslexia) and learning disabilities (such as Autism and Down s Syndrome). Some people, including those with cancer, multiple sclerosis and HIV/AIDS, are automatically protected as disabled people by the Equality Act. People with severe disfigurement will be protected as disabled without needing to show that it has a substantial adverse effect on day-today activities. Religion or Belief Race and religion are two separate concepts within the law. The legislation does not give a list of religions or belief groups that are covered under the Equality Act. However, it defines religion as any religion including not having any religion. Hence, an individual can be discriminated against if there is a requirement to be of a specific religion and the individual has no religious belief. A religion must have a clear structure and belief system for example Christianity or Islam. The exception to this is atheism which is characterised by a total absence of any structure or belief. Belief means any religious or philosophical belief, or a lack of such belief. To fall under the Equality Act, a belief must satisfy a number of criteria, including that it is a substantial aspect of the individual s life and behaviour. Political beliefs are not protected.

5 Sexual Orientation Sexual orientation is defined as orientation towards persons of the same sex (lesbians and gay men) orientation towards persons of the opposite sex (heterosexual/straight people) and orientation towards persons of the same sex and the opposite sex (bisexual). It is as unlawful to discriminate against heterosexual people, as it is to discriminate against lesbians, gay men and bisexual people. Age The Equality Act protects people of all ages. However, different treatment because of age is not unlawful direct or indirect discrimination if you can justify it, i.e. if you can demonstrate that it is a proportionate means of meeting a legitimate aim. Sex Refers to a persons biological sex, both men and women are protected under the Equality Act. This section of the Equality Act also covers discrimination towards a transgender person on the grounds of the sex they most associate with. Discrimination towards a transgender person with reference to the fact that they are transgender is covered in a separate section of the Equality Act (see below). The following three protected characteristics were previously covered under the Sex Discrimination Act Marriage and Civil Partnership The Equality Act protects people who are married or in a civil partnership, it does not cover single people. Gender reassignment As well as providing protection for transgender people The Act also extends its protection to transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Equality Act no longer requires a person to be under medical supervision to be protected so a woman who decides to live as a man but does not undergo any medical procedures would be covered. It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured. Pregnancy and Maternity The inclusion of pregnancy and maternity as a protected characteristic protects a woman from being discriminated against if she is treated unfavourably because of a pregnancy, because she has given birth or in the period of 26 weeks after giving birth. The Equality Act includes particular reference to treating a woman unfavourably because she is breastfeeding. When referencing a birth the Equality Act referes to either a live birth or a still birth in cases where more than 24 weeks of the pregnancy have passed. 5

6 4. Examples of Discrimination (Taken from ACAS website: Direct discrimination Paul, a senior manager, turns down Angela s application for promotion to a supervisor position. Angela, who is a lesbian, learns that Paul did this because he believes the team that she applied to manage are homophobic. Paul thought that Angela s sexual orientation would prevent her from gaining the team s respect and managing them effectively. This is direct sexual orientation discrimination against Angela. Discrimination by association June works as a project manager and is looking forward to a promised promotion. However, after she tells her boss that her mother, who lives at home, has had a stroke, the promotion is withdrawn. This may be discrimination against June because of her association with a disabled person. Perception discrimination Jim is 45 but looks much younger. Many people assume that he is in his mid 20s. He is not allowed to represent his company at an international meeting because the Managing Director thinks that he is too young. Jim has been discriminated against on the perception of a protected characteristic. Indirect discrimination A small finance company needs its staff to work late on a Friday afternoon to analyse stock prices in the American finance market. The figures arrive late on Friday because of the global time differences. During the winter some staff would like to be released early on Friday afternoon in order to be home before sunset a requirement of their religion. They propose to make the time up during the remainder of the week. The company is not able to agree to this request because the American figures are necessary to the business, they need to be worked on immediately and the company is too small to have anyone else able to do the work. The requirement to work on Friday afternoon is NOT unlawful indirect discrimination as it meets a legitimate business aim and there is no alternative means to available. Discrimination arising from Disability After instituting a no abuse policy, a dentist automatically excluded a patient with Aspergers Syndrome who swore despite being a patient for 13 years without trouble. This was found to be Direct Discrimination by an NHS Ombudsman. Harassment Paul is claiming harassment against his line manager after she frequently teased and humiliated him about working in an all female environment. Karen shares an office with Paul and she too is claiming harassment, even though she is not the direct victim, as the manager s behaviour has also created an offensive environment for her. Steve is continually being called gay and other related names by a group of employees at his work. Homophobic comments have been posted on the staff notice board about him by people from this group. Steve was recently physically pushed to the floor by one member of the group but is too scared to take action. Steve is not gay but heterosexual; furthermore the group know he isn t gay. This is harassment because of sexual orientation. 6

7 Third party harassment Chris manages a Council Benefits Office. One of his staff, Ali, is Asian. Ali mentions to Chris that he is feeling unhappy after a claimant made racist remarks in his hearing. Chris is concerned and monitors the situation. Within a few days the claimant makes further offensive remarks. Chris reacts by having a word with the claimant, pointing out that this behaviour is unacceptable. He considers following it up with a letter to him pointing out that he will ban him if this happens again. Chris keeps Ali in the picture with the Equality Actions he is taking and believes he is taking reasonable steps to protect Ali from third party harassment. Victimisation Anne makes a formal complaint against her manager because she feels that she has been discriminated against because of marriage. Although the complaint is resolved through the organisation s grievance procedures, Anne is subsequently ostracised by her colleagues, including her manager. She could claim victimisation. Pregnancy and maternity Lydia is pregnant and works at a call centre. The manager knows Lydia is pregnant but still disciplines her for taking too many toilet breaks. This is discrimination because of pregnancy and maternity as this characteristic doesn t require the normal comparison of treatment with other employees. Positive Action Historically the only positive actions employers take towards addressing inequality in the workplace are the provision of facilities to train and educate under represented groups into taking opportunities for work (e.g. through targeted training courses or mentoring). The new legislation both expands on this and implements a clearer framework in which positive action training can take place by offering training courses to anyone possessing a protected characteristic. Secondly types of training are expanded upon to offer disadvantaged groups the chance to train for management roles. This new legislation essentially expands upon the original concept by ensuring that disadvantaged groups have a proportionate means of achieving management positions as other employees. In addition the employer can take measures to address the needs of an employee in cases where the employer believes the employee to be suffering from a disadvantage which stops participation in a particular activity. The employer is also able to work with monitoring statistics to identify under representation within their field and then take measures to address the gap. Any positive action undertaken and the measures above remain voluntary and the employer is not legally obliged to provide these facilities. 7

8 5. Equal Pay The Equality Act makes changes to equal pay law. Whilst measures have been taken in past legislation to improve transparency around pay, some institutions would implement provisions which stopped employees discussing pay related matters. One example is within investment banks where in a recent tribunal one employer claimed that it was a vital component of the City bonus culture that bonuses are not revealed. The Equality Act seeks to change this culture by allowing employees to discuss pay and in cases where provisions to prevent this have been implemented an employee can make a relevant pay disclosure. Such a disclosure would render any provisions unenforceable and reveal to the employee whether or not pay was based on any particular protected characteristic. 8

9 6. Public Sector Duties A new public sector equality duty will replace the old ones on race, gender, and disability. The new duty will cover all the protected characteristics of race, gender, disability, age, sexual orientation, religion or belief, pregnancy and maternity, and gender reassignment at the same time. The general duties (sometimes refered to as the three arms of equality duty) will be to: 1. Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Act. 2. Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. 3. Foster good relations between persons who share a relevant protected characteristics and persons who do not share it. This new will come into force on the 6 th April As well as the general duties, there will be specific duties for public authorities, setting out further requirements about delivering the general duties. These specific duties were due to be implemented at the same time as the general duties but are being revised to be implemented later in The general duties cover the following: Protected groups The previous duties covered race, disability and gender, with some aspects covering gender reassignment. The new equality duty covers race, sex, disability, age, gender reassignment, religion or belief, sexual orientation, and pregnancy and maternity. It also covers marriage and civil partnership with regard to eliminating discrimination. The coverage for gender reassignment now applies to all three arms of the duty (listed above). Principles As with previous duties, the essence of the equality duty remains the requirement to have due regard to the need to achieve the three general duty aims. Equality information Although there is no express requirement in the general equality duty to collect and use equality information across all protected groups, it will be extremely difficult for a public authority to show that it has had due regard to the need to achieve the equality aims in the general equality duty without doing so. Engagement Although there is no express requirement in the general equality duty to undertake engagement, the general duty to have due regard requires public authorities to have an adequate evidence base for their decision-making, and engagement assists with developing that base. Consider what engagement we need to undertake with people who have an interest in tackling discrimination, advancing equality and fostering good relations. This includes people from the protected groups, staff, service users and trade unions (among others). 9

10 Equality analysis The general equality duty does not specify how we should analyse the effect of our policies and practices on equality, but doing so is an important part of complying with the general equality duty. It is up to us to choose the most effective approach for our organisation. Cases on the meaning of the old general equality duty still apply and they make it clear that the analysis has to be undertaken before making the relevant policy decision. Equality objectives The general equality duty does not require bodies to set equality objectives. Commissioning and procurement The duty applies to procurement and commissioning by public authorities. The requirement to comply with the general duty applies to all contracts, regardless of the value. 10

11 7. More Info: The Equality Act 2010: The main website for the Equality Act including the complete Act and FAQs The Acas website: A website featuring several guides to understanding the Equality Act for employees and employers and steps which could be taken to improve the workplace in order to remove disadvantages. The Equality & Human Rights Commission summaries of public authority duties: A list of 5 PDF documents including an overall guide to understanding local authority duties and responsibilities Swindon Citizens Advice Bureau Sanford House, College Street, SWINDON, SN1 1QH