The Equality Act And Your Business – ArePresentation Transcript
The Equality Act and Your Business – Are You Compliant? Neil Wilson
Predominantly harmonising provisions
Protects the same groups as previous legislation
Introduces “protected characteristics”
Extends protection in some areas
A review of your existing policies/procedures is advisable
Some key changes
Pre employment health related checks
More employment tribunal powers
Equal pay – direct discrimination
Equal Opportunities Dignity at Work
By law, employers must take steps that are reasonable and practicable to prevent unlawful discrimination
EO practice applies to: recruitment, selection, training , terms and conditions of employment, benefits, facilities and services, promotion, transfer, grievance and disciplinary procedures and dismissal policies and practices
Dignity at Work
What methods do we use to promote Equal Opportunities?
Through your Equal Opportunities policy and practices
Give responsibility for the Equal Opportunities to all employees
Publicising the policy to employees and Job Applicants
Regularly monitoring and reviewing our policy practice
Promoting a culture of dignity for all employees
Providing training for supervisors and other decision makers
Providing advice and assistance
Taking action where standards are breached
Types of Discrimination
Types of Discrimination
marriage and civil partnership;
pregnancy and maternity;
religion or belief;
Third party harassment
Section 11 – Equality Act 2010 - Sex
Gives protection against discrimination on the grounds of sex, protecting men and women.
Unfavourable treatment relating to pregnancy, childbirth or maternity is unlawful
Section 12 – Equality Act 2010 – Sexual Orientation
gives protection against discrimination on the grounds of sexual orientation, which is defined as ‘same sex’ (lesbian/gay), ‘opposite sex’ (heterosexual) and ‘either sex’ (bisexual)
Section 8 – Equality Act 2010 – Marriage and Civil Partnership
Gives protection against discrimination for a person who is a civil partner in a registered civil partnership of the same sex and a married person in similar circumstances
A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
Prevents discrimination on the grounds of gender reassignment
Section 5 – Equality Act 2010 - Age
Gives protection against discrimination on the grounds of age, protecting older and younger workers.
Section 6 – Equality Act 2010 – Disability
gives protection against discrimination on the grounds of disability, which is defined as a physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities
May fall for protection even if disability no longer affects day to day activities
Will be protected if condition is likely to recur
Section 9 – Equality Act 2010 – Race
Prevents less favourable treatment on the grounds of colour, nationality or ethnic origins
Section 10 – Equality Act 2010 – Religion or Belief
Prevents less favourable treatment on the grounds of a religion or lack of religion, a religious or philosophical belief or lack of belief .
Prevents discrimination on the grounds of gender reassignment
Other Provisions Relating to Age
Enforced retirement below the age of 65 is prohibited unless it can be objectively justified
Employees must be written to no less than 6 months and no more than 12 months informing them of their intended retirement date.
Employees will then have a right to request working beyond retirement, which triggers a detailed procedure that must be followed.
The lower and upper age limits in terms of qualifying for unfair dismissal and redundancy rights have been removed.
Other Provisions Relating to Disability
Impairment must be expected to last for 12 months or more
Individual assessment of impairment – GP reports
Employers duty to make reasonable adjustments
Deemed disabilities include blindness, severe disfigurements, multiple sclerosis, HIV and cancer
Excluded conditions: Personality disorders, hay fever, Voyeurism etc
Failing to recognise the obvious will not act as a defence
Section 13 – Equality Act 2010
Covers all protected characteristics
“ A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.
Discrimination on the grounds of age is justified if the treatment is “a proportionate means of achieving a legitimate aim”
If the protected characteristic is race, less favourable treatment includes segregating B from others.
If the protected characteristic is sex, “less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding”;
“ in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth”.
Section 19 – Equality Act 2010
Covers all protected characteristics except pregnancy and maternity
“ A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
A provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
Section 26 – Equality Act 2010
Applies to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation
A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
A also harasses B if A engages in unwanted conduct of a sexual nature , and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B
In deciding whether conduct has the effect referred to above, the following must be taken into account:
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
Do not have to compare to how somebody without the protected characteristic would be treated and could include:
Questions about a persons sex life
Displays of sexually explicit material (including magazines/ calendars)
Sexual demands by a member of your own or opposite sex
Demeaning remarks (about a persons appearance)
Employees are now protected from being harassed on the grounds of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation by any third party, including customers and suppliers.
A person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act.
Protected acts include bringing proceedings under the Equality Act, giving evidence or information in connection with proceedings under this the Equality Act, doing any other thing for the purposes of or in connection with the Equality Act, and making an allegation (whether or not express) that A or another person has contravened the Equality Act.
Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.
Perceived and Associative Discrimination
The Equality Act will prohibit direct discrimination and harassment based on association and perception in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age (direct discrimination based on association or perception in respect of marriage or civil partnership is not covered).
Associative Discrimination – for example, a woman is taunted about her son because of his disability. The mother does not have a disability but is discriminated against because of her association with a disabled person.
Perceived Discrimination – for example, a heterosexual man is subjected to homosexual abuse. Although he is not homosexual, that taunts are aimed at him as a perceived homosexual man.
Current Litigation Climate
2009 / 2010 = 236,100 claims submitted to the Employment Tribunals
This is an increase of 56% from 2008/09
20% of those claims directly linked with discrimination
A further 30% of claims indirectly linked with discrimination
Discrimination cases are often the most complex to defend
What does it mean for your business?
Calculate your profit per item sold.
This would mean you would need to sell XX,000 additional items to recover the cost of a race discrimination claim.
Bullying and Harassment
It is in every employer’s interests to promote a safe, healthy and fair environment in which people can work
2008 CIPD Bully & Harassment results:
16% employees experienced B & H
30% witnessed it in some form
The effects can be emotional, personal and devastating
The 1991 European Commission Code – ‘Protection of Dignity of Men and Women at Work’ places the responsibility onto employers to protect employees
It also highlights the need for employers to develop, monitor and implement policies to prevent bullying and harassment
Defining Bullying and Harassment
Any action against another person(s) that is unwelcome or unwarranted, which causes a detrimental effect
Bullying can be characterised as :
Bullying can be an abuse of power through means intended to undermine, humiliate and injure the recipient
Defining Bullying and Harassment 2
Harassment can be characterised as :
Unwanted conduct affecting the dignity of men and women in the workplace
It can be related to:
age, disability, gender reassignment, race, religion or belief, sex and sexual orientation
Key: demeaning and unacceptable to the recipient
Types of Bullying and Harassment
physical contact which is unwanted
unwelcome remarks about a persons dress, appearance, race or marital status
jokes, offensive language, gossip, slander, sectarian songs and letters
posters, graffiti, obscene gestures, flags, bunting and emblems
isolation or non-cooperation and exclusion from social activities
coercion for sexual favours
pressure to participate in political/religious groups
intrusion by pestering, spying and stalking
failure to safeguard confidential information
shouting at staff
setting impossible deadlines
Behaviour considered ‘bullying’ by one Manager may be considered ‘firm management’ by another
Most people will agree on extreme and obvious cases, but it is sometimes the ‘grey’ areas that are the most difficult to investigate
Examples of “grey” Area Bullying
Written communications – email, phone, memos, faxes
Copying memos, emails and faxes that are critical about an individual, to others who do not need to know
Spreading malicious rumours
Insulting remarks (particularly on the grounds of race, sex, disability, sexual orientation and religious beliefs)
Exclusion (particularly from a team/department social events)
Why is Bullying and Harassment not recognised?
Bullying and harassment can be hard to recognise and may not be obvious to others
It may be considered ‘normal behaviour’ within the organisation and if the employee complains, they may be considered weak and not up to the job
Could be accused of over-reacting, subsequently not reporting incidences for fear of retribution and/or not being believed
Colleagues may be reluctant to come forward as witnesses for fear of the consequences to themselves
They may also be relieved not to be the subject of the treatment themselves and may collude with the perpetrator as a way of avoiding attention
Any form of bullying and harassment is unacceptable on moral grounds, and if allowed to continue unchecked can create serious problems for an organisation, including:
Loss of respect for managers and supervisors
Damage to Company reputation
Poor morale and employee relations
Litigation (Tribunal and other court cases and unlimited compensation payments)
Take the complaint seriously and investigate promptly – don’t put it off
Be objective and independent
Make a decision as to what action needs to be taken
In some cases, people are not aware of their behaviour and an informal discussion which makes them aware that their behaviour is unwelcome, can lead to greater understanding
Where this is the case, agreement can be reached that the behaviour will cease
Employees may choose to do this themselves and may need additional support from Human Resources an Employee Representative, Manager or Counsellor
Taking Action 2
For serious or prolonged cases formal action may need to be taken
Company Disciplinary procedures
Potential gross misconduct / summary dismissal
Counselling can play a major role in complaints about bullying and harassment, by providing a confidential avenue for an informal approach and the opportunity to resolve the complaint without further need for any formal action
Employee Assistance Programmes are provided
Family friendly rights and lack of management awareness