Tansy hutchinson


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  • Public authorities with under 150 employees are not required to publish information on their employees (but should collect this to help develop their objectives and assess the impact of their employment policies on equality). This information shall include information relating to people from protected groups who are: Employees Affected by its policies and practices
  • Tansy hutchinson

    1. 1. The Equality Act 2010 and Age <ul><li>Tansy Hutchinson </li></ul><ul><li>Equality and Human Rights Commission </li></ul>
    2. 2. Equality Act 2010 <ul><li>Consolidates and harmonises protection against discrimination and harassment </li></ul><ul><li>Nine ‘protected characteristics’ (PCs): </li></ul><ul><ul><li>Age - Race </li></ul></ul><ul><ul><li>Disability - Religion or belief </li></ul></ul><ul><ul><li>Gender reassignment - Sex </li></ul></ul><ul><ul><li>Marriage/civil p’ship* - Sexual orientation </li></ul></ul><ul><ul><li>Pregnancy and maternity </li></ul></ul><ul><li>NB Every older person has several PCs! </li></ul><ul><li>(*only in relation to employment) </li></ul>
    3. 3. The protected characteristic of age <ul><li>Age is defined by reference to ‘age group’ </li></ul><ul><li>People sharing the PC of age are in the same ‘age group’ </li></ul><ul><li>A fluid concept – depends on context! </li></ul><ul><ul><li>Can be wide or narrow (20 year olds vs people in their 20s, those between 21 and 65) </li></ul></ul><ul><ul><li>Can use chronological age or age-related terms (‘under 80’, ‘middle aged’) </li></ul></ul><ul><ul><li>Can be relative (‘older than me’) </li></ul></ul><ul><ul><li>Can be linked to appearance (‘youthful’) </li></ul></ul>
    4. 4. Where is age discrimination outlawed by 2010 act? <ul><li>Outlawed in these sectors: </li></ul><ul><ul><li>Part 3: services/public functions (from April 2012?) – but not for under 18s </li></ul></ul><ul><ul><li>Part 5: employment </li></ul></ul><ul><ul><li>Part 6: Ch 2 (further/higher education) </li></ul></ul><ul><ul><ul><ul><ul><li>Ch 3 (general qualifications bodies) </li></ul></ul></ul></ul></ul><ul><ul><li>Part 7: associations (from April 2012?) </li></ul></ul><ul><li>NOT Part 4 (premises) or Part 6 Ch 1 (schools) </li></ul>
    5. 5. The objective justification test <ul><li>Unlike other PCs, direct discrimination because of age may be objectively justified </li></ul><ul><li>Objective justification is a two-part test: </li></ul><ul><ul><li>Is there a legitimate aim? ie, legal, non-discriminatory; a real, objective consideration? Examples: health & safety, welfare, public health </li></ul></ul><ul><ul><li>If the aim is legitimate, are the means of achieving it proportionate (that is, appropriate and necessary in all the circumstances)? NB The test is not met if the same aim could be achieved in a less discriminatory way </li></ul></ul><ul><li>Evidence must be available if challenged! </li></ul>
    6. 6. Age discrimination in services, public functions and associations <ul><li>Ban to commence April 2012?? </li></ul><ul><li>Some age-differentiated treatment may satisfy the objective justification test </li></ul><ul><li>Also express exceptions, provisionally: </li></ul><ul><ul><li>Financial services sector </li></ul></ul><ul><ul><li>‘ Beneficial concessions’(eg bus passes, discounts) </li></ul></ul><ul><ul><li>Age-based package holidays </li></ul></ul><ul><ul><li>Immigration control, park homes, and sport </li></ul></ul><ul><li>No express exception for health/social care – objective justification only! </li></ul>
    7. 7. Positive action measures <ul><li>Employers/service provider may choose to take positive action aimed at people sharing a PC, whom they reasonably think: </li></ul><ul><ul><li>Experience disadvantage linked to the PC, or </li></ul></ul><ul><ul><li>Have different needs compared to other groups, or </li></ul></ul><ul><ul><li>Have disproportionately low participation </li></ul></ul><ul><li>Employer/provider can take proportionate action to overcome disadvantage, meet needs or increase participation for group sharing PC </li></ul><ul><li>Should review the action periodically </li></ul>
    8. 8. The public sector equality duty <ul><li>This came into force on 5 April 2011. </li></ul><ul><li>In the exercise of their functions, public authorities must have due regard to the need to: </li></ul><ul><li>Eliminate unlawful discrimination, harassment and victimisation and any other conduct that is unlawful under the Equality Act. </li></ul><ul><li>Advance equality of opportunity </li></ul><ul><li>Foster good relations </li></ul>
    9. 9. Advancing equality Remove or minimise disadvantages suffered by people with protected characteristics due to having that characteristic. Take steps to meet the needs of people with protected characteristics that are different from people who do not have that characteristic (including taking account of a disability). Encourage protected groups to participate in public life and in any other activity where participation is disproportionately low.
    10. 10. Who the general duty applies to Public authorities listed in Schedule 19 of the Equality Act (e.g. local authorities, FE and HE bodies, schools, health bodies, police, fire and transport authorities, government departments). Public, private, or voluntary organisations carrying out public functions (including on behalf of a public authority). The Equality Act uses the same definition as the Human Rights Act 1998 (which was used for the gender and disability equality duties).
    11. 11. PSED and Age specific points <ul><li>Does not apply, on grounds of age, to functions relating to schools. </li></ul><ul><li>Age exceptions on grounds of age under the Equality Act 2010 (services, premises, people under 18) apply to the elimination of discrimination. </li></ul><ul><li>BUT: the second and third aims on advancing equality and fostering good relations do apply in these areas. Ex: intergenerational work under good relations; outreach to encourage isolated older people to use day care centres to assist participation in public life; sexual health programmes aimed at specific age groups. </li></ul><ul><li>The duty on all other grounds (e.g. race, disability etc) also applies to, for example, service provision, schools etc in relation to all aims, including the elimination of discrimination. </li></ul>
    12. 12. Meeting the general duty: key components <ul><li>Assessing relevance </li></ul><ul><li>Equality information (including sensitive information) </li></ul><ul><li>Assessing impact </li></ul><ul><li>Commissioning and procurement </li></ul>
    13. 13. Some case law principles Those who exercise functions must be aware of the duty’s requirements and decision-makers must be fully aware of the implications of the duty when making decisions about policies. The duty must be complied with before and at the time a policy is under consideration and decisions are taken. Consideration of equality matters should be an integral part of decision-making. The duty must influence the final decision. Third parties exercising public functions for a public authority must comply with the duty.
    14. 14. The specific duties The purpose of the specific duties is to help public authorities meet the general duty. Meeting the specific duties alone is not sufficient to meet the general equality duty. The specific duties regulations for England (and non devolved bodies) have now been laid before Parliament. A date for implementation has not yet been announced by the Government. Wales has different specific duties, Scotland is yet to adopt theirs
    15. 15. Draft specific duties (England) <ul><li>1. Publish equality information: </li></ul><ul><li>To demonstrate compliance with the general equality duty </li></ul><ul><ul><ul><li>Public authorities (except schools) by 31 st January 2012, then annually. </li></ul></ul></ul><ul><ul><ul><li>Schools by 6 April 2012. </li></ul></ul></ul><ul><li>All information should be published in an accessible manner. It can be published individually or as part of another document. </li></ul><ul><li>2. Prepare and publish equality objectives </li></ul><ul><li>Prepare and publish one or more equality objectives by 6 April 2012, and at least every four years after that. </li></ul><ul><li>Ensure the objectives are specific and measurable. </li></ul>
    16. 16. Messages for public authorities Clear leadership is crucial (including informing staff of their obligations). Build on your work on the race, disability, gender duties. Take action proportionate to the relevance of an issue to equality and to good relations. The equality duty applies across your work (e.g. services, policy-making, employment, planning, procurement, statutory decision-making).
    17. 17. Guidance for England (and non devolved bodies in Scotland/Wales) The essential guide to the public sector equality duty Equality analysis and the equality duty Engagement and the equality duty Equality objectives and the equality duty Equality information and the equality duty The current guides do not reflect the latest draft specific duties but they set out a range of advice about meeting the general equality duty. Sign up to our newsletter for the latest info!
    18. 18. Other EHRC work to look out for Disability Harassment inquiry Home care inquiry The public sector equality duty: a way forward for the health sector