Equality act race equality


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Making the Equality Act work for race equality

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  • What are these institutions?
    Government departments
    Local authorities
    UK Boarder Agency
    NHS and deliverers of care
    Probation services
    The justice system
  • 9 pieces of legislation/over 100 stat instruments.
    Gender pay gap - 23% (includes part- and full-time hourly earnings). 16.4% if F/T only
    Poorer children under achieving – poor, bright children overtaken by less bright middle class by age 7
    Employment gap - disabled people - 27% more unemp than non-disabled
    Employment gap – BME - 14% more unemp than White
    Age discrimination in goods, facilities and services – 1 in 5 older people can’t get travel insurance
    Homophobic bullying in schools 60% of LGB children victims of homophobic bullying
    All figs from Director of GEO Jonathan Rees (except 23% pay gap H.Harman) JR also said (June 2010) ‘simplification will both help organisations to implement effective E&D policies and save on costs’.
    The Act
    Streamlined previous legislation
    Provided new measures to fight discrimination
    Extended existing protections to cover 7 strands plus marriage and civil partnerships, pregnant women and new mothers.
  • Quick start guide to the changes for disabled people
  • Race – refers to a group of people defined by their race, colour, nationality, ethnic or national origins. E.g. BME, Sikhs, Gypsies and Travellers, Welsh, Migrant Workers.
    Age – a person of any age e.g. 32 years old or range of ages e.g. 18-30. Children u16 are not covered by age legislation in goods, facilities and services;
    Disability – “a physical or mental impairment which has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities”. E.g. dyslexia, cancer, alcoholism, HIV/Aids.
    Gender reassignment – any person in the process of transitioning from one gender to another. Includes pre-op, during ops and post-op.
    Marriage and civil partnerships – Civil partners must be treated the same as married couple on a wide range of legal matters. E.g. Parental rights, pension beneficiaries.
    Pregnancy and maternity – ‘the condition of being pregnant or expecting a baby’. Maternity refers to the period after the birth and is linked to maternity leave in the employment context. In the non-working context, protection against maternity discrimination is for 26 weeks after giving birth and includes treating a woman unfavourably because she is breastfeeding.
    Religion or belief – includes religious and philospohical beliefs including lack of belief (Athiesm). Generally, a belief should affect your life choices or the way in which you live for it to be included in the definition.
    Sex – a man or a woman.
    Sexual orientation – whether a person’s sexual attraction is towards their own sex, the opposite sex or to both sexes. E.g. Lesbian, gay, bi-sexual, straight (heterosexual), questioning.
    ESW facilitates 7 RENs.
  • Hate crimes are any crimes that are targeted at a person because of hostility or prejudice towards that person’s: race or ethnicity. This can be committed against a person or property. A victim does not have to be a member of the group at which the hostility is targeted. In fact, anyone could be a victim of a hate crime. Hate Incidents can feel like crimes to those who suffer them and often escalate to crimes or tension in a community. For this reason the police are concerned about incidents and you can use this site to report non-crime hate incidents.  http://report-it.org.uk/what_is_hate_crime
    Associative Discrimination
    This already applies to Race, Religion or Belief and Sexual Orientation. It is now extended to cover Age, Disability, Gender Reassignment and Sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic.
    Perceptive Discrimination
    This already applies to Age, Race, Religion or Belief and Sexual Orientation. It is now extended to cover Disability, Gender Reassignment and Sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess the characteristic.
    It is not necessary to prove that the discriminator intended to discriminate.
    The only question is whether the wording set out in the EA is satisfied.
    In order for someone to show that they have been directly discriminated against they must compare what has happened to them to the treatment a person without their protected characteristic is receiving or would receive.
    Positive action - not discrimination
    It is not direct discrimination against a male service user or staff member to offer a female service user or staff member special treatment in connection with her pregnancy or childbirth.
    It is not direct discrimination against a non-disabled service user or staff member to treat a disabled service user or staff member more favourably.
    Arising from disability – occurs when a disabled person is treated unfavourably because of something connected with their disability and the unfavourable treatment cannot be justified.
    CASE LAW EXAMPLE: McNeil v Audi South West: Female, highly-performing car sales person becomes pregnant; She then is told she is being moved to a job which is “more suitable” for a pregnant person; The alternative role is at a lower level of basic pay and her opportunities to earn commission are massively reduced; She is put under pressure to accept the role.
    Q - Can you give any examples of direct discrimination that you have heard of?
  • Q - Can you give more examples of indirect discrimination that may occur in your workplace?
    It doesn’t matter that you did not intend to disadvantage people with a protected characteristic. What does matter is whether your action does or would disadvantage such individuals compared with others who do not share that characteristic.
    You can use policies, practices or criteria that could amount to indirect discrimination provided that you can show that it is justified as a “proportionate means of achieving a legitimate aim”.
    E.g. A policy which says that nurses and other medical staff cannot wear jewellery (religious or otherwise) in the workplace because this may pose a health and safety risk to the individual and their patients is unlikely to be indirect discrimination as it could be justified as a proportionate means of achieving a legitimate aim.
  • Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership.
    Employees now be able to complain of behaviour that they find offensive even if it is not directed at them.
    The complainant need not possess the relevant characteristic themselves.
    Employees are also protected from harassment because of perception and association.
  • An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. 
    There is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint under the Act.
    Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. The Equality Act amends the definition 'victimisation'
  • Scope of the Duty
    ‘Due regard’ to eliminating unlawful discrimination, advancing equality and fostering good relations must now be promoted by both
    public bodies and
    private ones that carry out public functions on their behalf
    Specific Duties
    Public bodies (and those performing public functions) need to publish equality objectives,
    at least every four years 
    with information to demonstrate their compliance with the equality duty, at least annually
  • The PSED broadens and strengthens the ‘positive equality duties’ previously found in section 71 of the Race Relations Act 1976 (RRA), section 49A of the Disability Discrimination Act 1995 (DDA), and section 76A(1) of the Sex Discrimination Act 1975 (SDA).
    This means that ‘due regard’ to eliminating unlawful discrimination, advancing equality and fostering good relations must now be promoted by
    public bodies and
    private ones that discharge public functions
    This includes in particular, steps to take account of disabled persons’ disabilities.
    Underpinned by the Equality and Human Rights Commission (EHRC) and Government Equalities Office guidance.
    The UK borders and Immigration agency is bound by the PSED
  • Case law has been summarised in 6 principles:
    Decision-makers must be made aware of their equality duties
    1. It was in accordance with this principle, Mr Justice Holman pointed out that Theresa May wrote the letter in June 2010 which is cited at the start of this article. He said he was sure the Secretary of State (Michael Gove) and his senior officials had received and read the letter, even though they did not act in accordance with it. He noted the Michael Gove had declared in parliament on 5 July 2010 that 'the coalition government are determined to make opportunity more equal…' but commented that this, though laudable, 'is entirely generalised and not at all disability, race or gender specific'.
    He added: 'There is absolutely no mention whatsoever in the statement of any disability, race or gender equality issues or needs having been considered by the Secretary of State at all.' Further, he said he had studied option papers about BSF prepared for ministers in the period May-July 2010 but had been unable to find a single reference to disability, race or gender within them. He concluded:
    'Whilst the absence of such references or records is not determinative, I regret to say that, in this case, I regard the absence as glaring and very telling. I am simply not satisfied that any regard was had to the relevant duties at all, let alone rigorous regard.‘
    2. Equality must be considered at the time that decisions are made
    Due regard must be paid before and at the time that a particular decision is being considered, not later. Attempts to justify a decision as being consistent with the exercise of the duty when it was not in fact, considered before the decision, are not sufficient to discharge the duty.
    3.Analysis must be rigorous
     The duty must be exercised in substance, with rigour and with an open mind – it is not a question of just ticking boxes, or of merely paying lip service. There must be substantial sifting of relevant facts and research, and fair attention to conflicting views. It follows there must be meaningful consultation and engagement with interested parties.
     Said Mr Justice Holman:
    'Different claimants have emphasised to me school of particular disability (special needs), race or gender (single sex schools) relevance in their respective areas. The point is that if only the Secretary of State had consulted with them, they would have been able (if they wished) to highlight those special equality considerations to him.‘
    4. Non-designation
     The duty to have due regard cannot be delegated.
    5. Ongoing
    The duty is an continuing one – namely, it cannot be exercised once and for all, but on the contrary must continually be revisited and borne in mind.
    6. Record-keeping
     It is good practice to keep an adequate record showing that the equality duties have been actually considered and pondered. Minimally, the record should be dated and should indicate the evidence that has been taken into account. The purpose is to discipline decision-makers to undertake their equality duties conscientiously. 
  • Kaur -v- London Borough of Ealing
    This case dealt with the issue of whether a race impact assessment should have been carried out before the council decided to cut funding to a voluntary organisation, Southall Black Sisters (SBS). It provided services to Asian and Afro-Caribbean women who experience domestic abuse.
    In 2007-2008 they were partly funded by Ealing Borough Council. The council decided in September 2007 that it would only fund borough-wide services provided to everyone experiencing domestic violence irrespective of gender, sexual orientation, race, faith, age, or disability.
    SBS said that this would have a disproportionate adverse impact on black and minority ethnic (BME) women and pointed out that the council had not done a race equality impact assessment.
    The council then undertook a “draft equality impact assessment”, which indicated that the impact on BME women would be monitored when the new arrangements were in place.
    However, it did not carry out a full equality impact assessment. A few months later, the council confirmed its earlier decision to fund a single borough-wide service provider. The claimants, service users of SBS, successfully applied to judicially review this decision.
    The court quashed the council’s decision and reiterated the importance of under­taking an equality impact assessment, and also the importance of carrying out an impact assessment before formulating policy.
    Other cases
    There are a number of other examples of successful cases that have resulted in the courts’ quashing the decisions of public authorities.
    These include:
    • cutting the funding of voluntary organizations in Chavda -v- Harrow LBC • refusing to allow a Sikh girl to wear a kara through the rigid application of a school uniform policy in Watkins-Singh -v- Governing Body of Aberdare Girls High School • refusing to license a particular model of taxi for use as a hackney cab despite disabled groups making representations that many wheelchair users could not travel safely in Lunt and another -v- Liverpool City Council • approving planning permission for a development of chain stores and luxury flats on a site overwhelmingly occupied by BME businesses and tenants in Harris -v- London Borough of Haringey.
    It’s worth remembering that the whole point of enacting the public sector duties in the first place was to eliminate institutional discrimination.
    The race equality duty, the first to be enacted, was a response to the recommendations of the Macpherson inquiry into Stephen Lawrence’s murder, highlighting the need for organisations to eliminate institutional racism.
  • Local Government Association
  • Because the general equality duty requires them to analyse the effect policies and practices on all protected groups, public authorities will not be able to meet the duty unless they have enough usable information.
    If public authorities have not yet achieved a culture where employees or service users are ready to be asked about their sexual orientation, gender identity or religion or belief, they should take steps to engender a culture of trust in which this information could be collected. There may be other means of identifying the issues faced. Analysing national or local research and engagement with people from those groups can be useful for identifying potential issues of concern.
    If this information is collected, it is important to explain why the information is being collected, what it will be used for, and how privacy will be protected. Includes contracted out work under procuremnt
  • Additional notes to be circulated with template letters
  • Equality act race equality

    1. 1. The Equality Act 2010: Making it work for race equality 3rd July 2013
    2. 2. Stephen’s legacy “It is incumbent on every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of our communities.” (Lord William MacPherson, Stephen Lawrence Enquiry report, 1999)
    3. 3. Background to the Equality Act 2010 • Two reviews: Progress on equalities; and impact of discrimination laws • Concluded that – Gaps in protections for some groups persisted – Need to simplify and harmonise discrimination law, and to strengthen the law to support progress on equality • Equality Act consolidated action against ‘Institutionalised discrimination’
    4. 4. Key provisions include • Identifies nine ‘Protected characteristics’ • Defines unlawful discrimination in relation to the these • Protects against discrimination in the workplace and when using services • Clarifies scope for positive action • Creates a single Public Sector Equality Duty • Strengthens protections for disabled people and carers
    5. 5. Nine ‘Protected Characteristics’ Age Race isability D Marrriage Ma iage and Civilil and Civ hip Parrnerrship Pat tnes ex S Pregnancy Pregnancy and and Maternity Maternity Sexua l Orien tation Relig ion or Be lief Gender nt assignme Re
    6. 6. Discrimination defined/clarified • Direct discrimination - includes ‘perception’ and ‘association’ • Indirect discrimination • Harassment • Victimisation
    7. 7. Direct Discrimination Direct Discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have, or are thought to have, or because they associate with someone who has a protected characteristic.
    8. 8. Indirect Discrimination Indirect discrimination occurs when an organisation has criteria, policies, procedures or practices which, although they apply to all employees or service users, have the effect of disproportionately disadvantaging people who share a particular characteristic. E.g. Scheduling important team meetings for Fridays, requiring people to work on Sundays
    9. 9. Harassment “Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. E.g. Repeated offensive comments, ‘nicknames’ and ‘banter’ in the school or workplace.
    10. 10. Victimisation Victimisation occurs when a person is treated badly because they have made, supported or are suspected to have made or supported a complaint or grievance under The Equality Act.
    11. 11. The Public Sector Equality Duty (aka General Duty) A public authority must, in the exercise of its functions, have due regard to the need to— a.eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act; b.advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; c.foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
    12. 12. “Due regard” to advance equality means public bodies should ... 1. remove or minimise disadvantages suffered by persons ... that are connected to a protected characteristic; 2. take steps to meet the needs of those who share a relevant protected characteristic that are different from the needs of persons who do not share it; 3. encourage people who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
    13. 13. Due regard - the ‘Brown principles’ 1. Decision-makers must be made aware of their equality duties 2. Equality must be considered at the time that decisions are made 3. Analysis (of the impact on equality) must be rigorous 4. The duty to have due regard cannot be delegated. 5. The duty is a continuing one: it must continually be revisited and borne in mind. 6. Record keeping (important - to show compliance)
    14. 14. Back to the drawing board, Ealing “Following a victory for Southall Black Sisters, Ealing council now has to rethink its policy on domestic violence services...” (July 2008)
    15. 15. Responsibilities of councillors “Councillors are expected to understand the impact of cutting budgets and to mitigate potential negative outcomes, especially the cumulative impact on specific groups of people. Getting this right will ensure fairness and equality of opportunity for local people.” (A guide for new councillors 2013/14: Local Government Association http://www.local.gov.uk/c/document_library/get_file?uuid=4477f9ae-e3cb-4f29-b135 )
    16. 16. Practical implications for service providers and employers • Know who their staff and communities are (equality data gathering) • Understand equality issues/barriers to equality affecting specific groups (proper consultation!) • Give the potential impact serious consideration - and look at ways to mitigate – before decisions are made
    17. 17. Ways to challenge • Contact Equality Advisory and Support Service or local CAB • Letter/s setting out concerns (to relevant officer or member of council/chair of governing body • Request for information under the Freedom of Information Act if necessary (keep copies of everything!) • Lodge a formal complaint with the authority • Report to EHRC or relevant Ombudsman
    18. 18. Other ways to challenge/ campaign • Arrange to meet with key personnel (officers, councillors, MPs) • Raise issues at council and public meetings • Use the media • Group organising and campaigning: often more effective when acting with others, whatever methods are used.
    19. 19. Websites and links Equality & Human Rights Commission www.equalityhumanrights.com Government Equalities Office www.gov.uk/government/organisations/government-equalities-office Equality and Diversity Forum www.edf.org.uk Equonomics http://equanomics.org/ Runnymede Trust http://www.runnymedetrust.org/ Race On The Agenda http://www.rota.org.uk Local Government Association www.local.gov.uk/ NHS Employers (Equality Delivery System) www.nhsemployers.org/ Equality Advisory & Support Service www.gov.uk/equality-advisory-support-service Information Commissioner’s Office http://ico.org.uk/ Ombudsman www.ombudsmanassociation.org/about.php