IntroductionWhatever our role within an organisation, we need to know about equality.An employer may be small or large – its size will often determine the level offormality that exists at work - but despite this, equality law still applies.Equality law applies whatever:• the sector an organisation is in• the type of systems and processes that are used.All employers have legal obligations in relation to equality. Employers ofchoice are forward thinking businesses that recognise the benefits toeveryone of showing respect and dealing with issues openly and fairly atwork.The Equality Act 2010 is effective from October 2010 and this course willenable you to:• recognise the key features and context of the Equality Act 2010• describe the types of discrimination and various protected characteristics• identify the impact of the Equality Act on colleagues, on your organisation and on working life• create a brief plan to review equality in your workplace which outlines necessary measures for improvement.We may think of the application of the Act in relation to employment but it’simportant to remember that goes much further that this and applies to manydifferent situations such as being treated in a hospital, purchasing goods andservices, using public transport and so on.In this course we will focus life at work when considering how the Act applies.The Act is designed to protect individuals from unfair treatment and topromote a fair and more equal society in England, Scotland and Wales.
Purpose of the ActThe purpose of the Equality Act 2010 can be summarised as:• the bringing together of several different pieces of UK anti-discrimination legislationand• the updating and extension of these where required.The Act defines certain actions that are not permissible and that areconsidered unlawful. We’ll look at these closely later but for now, can listthem as:• direct discrimination• associative discrimination• perceptive discrimination• indirect discrimination• harassment• third party harassment• victimisationThe Act also identifies so-called ‘protected characteristics’ which are bestdescribed as certain attributes that regular people possess which the lawconsiders should be safe-guarded. When we say ‘safe-guarded’ we meanagainst the actions shown above.In summary, these protected characteristics are:• age• disability• gender reassignment• marriage and civil partnership• pregnancy and maternity• race• religion or belief• sex• sexual orientation.
BackgroundThe Equality Act of 2010 is effective from 1st October 2010.It replaces nine major pieces of legislation and lots of smaller pieces oflegislation and draws together under one roof all the important UK anti-discrimination laws.In addition to this, the Act introduces some new anti-discrimination featuresand is therefore a combination of rights and responsibilities that have• stayed the same• changed• been extended• been introduced for the first time.Let’s look at the background to the Act.In the UK, we have seen a great deal of equality legislation in the past thirty toforty years. Racial discrimination and sex discrimination laws were introducedin the 1970’s to ensure that people of different races, and men and womenwere treated equally and got the same pay for the same job.Later, in the 1990s anti-discrimination laws for disabled people came intobeing and then in 2004, legal rights were given to lesbian, gay and bisexual toenable them to become partners, like married people.With all of these pieces of legislation it would be reasonable to conclude thatequality was being successfully addressed within the UK. However, this wasnot universally felt to be the case; there existed some scepticism as to theeffectiveness of UK equality laws.What’s more, developments in European law (directives) as well as case lawmeant that the equality laws were constantly being challenged.All of this prompted a review of UK equality legislation, beginning in 2005 withthe Discrimination Law Review and culminating with the announcement inJune 2008 by Harriet Harman, the then Leader of the House of Commons, ofa new Single Equality Bill. Ultimately, the Government published the EqualityBill on 27 April 2009.Before May 2010, the Conservative Party – then in opposition - hadsuggested that should it come to power, it would repeal some of the measuresof the Equality Act 2010, particularly in relation to gender pay).On behalf of the new coalition government, the Conservative Home Secretary,Theresa May, later announced the intention to continue with the terms oflegislation. It will be interesting to observe whether the Act prevails in thelong term with all its original features intact.
Types of DiscriminationAs we saw in our introduction there are a number of different actions outline inthe 2010 Act. These are the types of unlawful discrimination that can arise.Direct DiscriminationThis occurs when someone is treated less favourably than another personbecause of a protected characteristic (we’ll define the protectedcharacteristics later).Associative DiscriminationThis is discrimination against a person because they have an association withsomeone with a particular protected characteristic.The 2010 Act extended application of this action to cover age, disability,gender reassignment and sex; previously, it applied to only race, religion orbelief, and sexual orientation.Perceptive DiscriminationThis is discrimination against a person because the discriminator thinks theperson possesses a protected characteristic, even if they do not in actually doso.The 2010 Act extended application of this action to cover disability, genderreassignment and sex. Before, it had applied only to age, race, religion orbelief and sexual orientation.Indirect DiscriminationThis occurs where a policy, rule or procedure applies to everyone but has adisproportionate impact on people with a protected characteristic.The 2010 Act extended this action to apply to disability discrimination andgender reassignment.HarassmentThe 2010 Act defines harassment as ‘unwanted conduct related to a relevantprotected characteristic, which has the purpose or effect of violating anindividual’s dignity or creating an intimidating, hostile, degrading, humiliatingor offensive environment for that individual.It applies to all the protected characteristics except for pregnancy andmaternity and marriage and civil partnership.An employee can complain of behaviour they find offensive even if it is notdirected at them.
Third Party HarassmentThe Act makes employers potentially liable for harassment of their employeesby people they do not employ. An employer will only be liable if theharassment has occurred on at least two previous occasions, and if it knowsthat it has taken place and has not taken reasonable steps to prevent it fromrepeating.Third party harassment applies to all the protected characteristics (see later)except for pregnancy and maternity and marriage and civil partnership.VictimisationThis occurs when an employee is treated badly because they have made orsupported a complaint or raised a grievance under the Equality Act; orbecause they are suspected of doing so.If an employee has maliciously made or supported an untrue complaint theyare not protected from victimisation.
Protected CharacteristicsHere we are going to outline the ‘protected characteristics’ identified by theEquality Act 2010, from the perspective of employment.Remember that not all the actions identified in the previous section as unfairdiscrimination apply to all the protected characteristics.AgeBefore the 2010 Act employers were already prevented from saying withoutany justification that an applicant was too old or too young for a job. Theeffect of the Act is to underline the unlawfulness of discriminating on the basisof age.Interestingly, if an employer can justify the reasons for treating someonedifferently because of their age, this is not considered to be unlawful (i.e. it isnot direct or indirect discrimination).An example might be of an employer refusing to consider a job applicant onthe basis of age (i.e. being too young) since the role reasonably calls for anamount of experience and it is not viable to provide training.Employers are permitted to use a default retirement age of 65 when writingcontracts of employment, so a worker’s employment is automatically fairlyterminated when this age is reached. Be careful here though; the governmenthas announced the end of the legal default retirement age - we will have tosee what effect this has on age discrimination.DisabilityThe Act says that a person is disabled if they have a physical or mentalimpairment which has a substantial and long term adverse effect on theirability to carry out normal day-to-day activities.Disabled people have been protected by UK for some time before the 2010Act cam into effect. This included the requirement for an employer to makereasonable adjustments to enable a disabled person to work for them.Under the 2010 Act indirect discrimination, associative discrimination andperceptive discrimination all became unlawful in relation to disabled peopleand discrimination arising from a disability is forbidden.Within this area of the Act falls the matter of pre-employment healthquestions, the use of which is now limited to certain circumstances only. Suchcircumstances include the use of questions to determine whether reasonableadjustments are needed for a new employee. These types of questions areless restricted once a job offer has been made.
Pregnancy And MaternityThe Act gives protection against direct discrimination to women who arepregnant or on maternity leave during the period of pregnancy and duringstatutory maternity leave.When making a decision about a woman’s employment, an employer is notpermitted to take into account a period of absence due to pregnancy-relatedillness.Marriage And Civil PartnershipThe 2010 Act makes it unlawful to discriminate directly or indirectly againstpeople who are married or in a civil partnership.Gender ReassignmentHere employers must consider people who are proposing to, are starting orhave completed a process to change gender – transsexual people.Transsexuals are not the same as transgender people who are also known ascross dressers and do not come within the scope of the Act. This is becausetransgender people do not intend to live permanently in their opposite gender.Before the 2010 Act it was necessary for a person to be under medicalsupervision towards gender change if they were to be protected by the law,but this provision has been removed.Indirect discrimination, associative discrimination and perceptivediscrimination are all unlawful in relation to transsexual people as a result ofthe 2010 Act.An example might be the absence of a transsexual person from work becausethey are undergoing gender reassignment. It would not be permissible for anemployer to treat that person less favourably than if they were absent fromwork because of sickness or injury.RaceWithin the Act, ‘race’ includes colour, nationality and ethnic or national origins.It is unlawful for employers to discriminate in any way on the grounds of aperson’s race.Religion Or BeliefAn employer must be aware that people are protected against all types ofdiscrimination on the grounds of their religion or beliefs (or the absence ofthese). The Act says that to be protected a:• religion must have a clear structure and belief system
• belief (any religious or philosophical belief or lack of such belief) must satisfy various criteria.There is no protection for political beliefs.SexIt is not lawful to treat someone less favourably on the basis of their sex.Protection applies against all types of discriminatory actions provided for bythe 2010 Act.Sexual OrientationPeople are protected against all types of discrimination on the grounds of theirsexual orientation. This means those who are bisexual, gay, heterosexualand lesbian.We have now considered the:• types of discrimination that are unlawful• protected characteristicsWe should remind ourselves that not all the types of discrimination apply to allthe characteristics. To help, it is useful to refer to the Handout whichreproduces a table from ACAS (the Advisory, Conciliation and ArbitrationService) showing the effect of the 2010 Act.
What Else?As well as defining unlawful actions and protected charateristics, the EqualityAct of 2010 sets out some other provisions.Dual DiscriminationClaims for direct discrimination on two combined grounds (but no more thantwo) are allowed by the 2010 Act. For example, for a claim can be made onthe basis of discrimination for being a disabled woman.Positive ActionAs with previous equality legislation, the Act allows for what is known aspositive action. So an employer can lawfully remove barriers that mightprevent certain people from being employed by or progressing through itsorganisation.In practice, an employer can favour a candidate from an under-representedminority if, for example, two applicants for a job or promotion are equally wellqualified. Currently, this this is an option rather than a legal obligation.Equal Pay – Direct DiscriminationHistorically, it was most common for an equal pay challenge to be made bythe complainant (i.e. the aggrieved employee) using a comparison with a realperson of the opposite sex. The 2010 Act means a claim of direct paydiscrimination can be made whether or not a real person can be found tocompare with.Pay SecrecyAs a result of the 2010 Act, it is unlawful for employers to prevent or restrictemployees from having a discussion to establish if differences in pay existthat are related to protected characteristics.Employment TribunalsThe Act enables an employment tribunal to recommend that an employer takesteps to eliminate or reduce the effect of discrimination on a claimant and onother employees within that organisation.Objective Justification TestFor some types of unlawful actions, an employer may have a reasonabledefence if it can justify how it treated a person. The effect of the 2010 Act isthat an organisation must show that its conduct was a proportionate means ofachieving a legitimate aim is the discrimination is to be fair. The 2010 Actintroduced a single objective justification test.
Public Bodies• Single Equality Duty - before 2010, there existed three separate public sector equality duties applying to public bodies for race, disability and gender; now there is a single public sector equality duty, which embraces other grounds such as sexual orientation and religious belief, as well as the existing grounds.• Transparency - the 2010 Act introduced: • an obligation on public authorities to report on their disability employment rate • a stronger requirement for public bodies to tackle private sector discrimination through public procurement policies.
When Unfairness Arises - EmployersWhat happens when a worker complains that their employer, a colleague oran agent of the employer has unlawfully discriminated against them?The Equality Act 2010 places on the employer a responsibility to deal with thecomplaint. The employer must find out if there has been unlawfuldiscrimination and, if so, put the situation right.And who can a worker complain to?A worker may take a complaint to their employer and / or to an employmenttribunal.When making a complaint to their employer, this is known as a grievance.The employer should implement its grievance procedure (usually found in astaff handbook or the employee’s contract of employment) so that matters arecorrectly addressed. You may wish to take a look at your employer’sgrievance procedures to get a better feel for this.When making a complaint to an employment tribunal, the employee mustfollow a particular procedure. This may very well start with seeking guidanceand input from ACAS.The employment tribunal is like a court system for employment issues. If aworker’s complaint is felt to be justified, the employment tribunal will allow thecase to be heard.Where a worker’s claim for unfair discrimination is successful, the employmenttribunal is able to make what is known as a ‘remedy’. The means one of thefollowing:• make a declaration that an employer has discriminated• award compensation for the worker’s financial loss (for example, loss of earnings), and damages for injury to the worker’s feelings (there is no legal upper limit on the amount of compensation)• make a recommendation requiring the employer to do something specific within a certain time to remove or reduce the bad effects which the claim has shown to exist, for example, providing a reference or reinstating the person to their job• make a recommendation requiring the employer to do something specific within a certain time to remove or reduce the bad effects which the claim has shown to exist on the wider workforce (although not in equal pay cases) such as introducing an equal opportunities policy.
With indirect discrimination, if an employer can prove that it did not intendwhat it did to be discriminatory, the tribunal must consider all the remediesbefore looking at damages.Although not common, the tribunal can order an employer to pay the legalcosts and expenses of the worker on top of its own legal costs and expenses,
When Unfairness Arises – OthersSo far we have looked at situations concerning complaints by workers inrelation to the actions of their employer.There are also cases where complaints are made by workers about theactions of an employee (e.g. a colleague) or an agent (e.g a consultant orother person acting under contract for the employer).In some situations, an employee or agent may be personally responsible fortheir own acts of discrimination, harassment or victimisation carried out duringtheir employment or while acting with the employer’s authority.Such personal responsibility arises where the employment tribunal finds thatthe employer is also liable as the employer or principal, or where the employerwould be responsible but can show that: • it took all reasonable steps to prevent the employee discriminating against, harassing or victimising someone, or • its agent acted outside the scope of its authority.An employee or agent will not be responsible for discrimination if theiremployer has told them there is nothing wrong with what they are doing andthe employee or agent reasonably believes this to be true.It is a criminal offence for an employer to make a false statement which anemployee or agent relies upon to carry out an unlawful act. Such a act ispunishable by a fine.
PlanningThe Equality Act 2010 applies to ‘workers’; this means all employees,including trainees and apprentices, as well as job-seekers and so on.The scope of the Act is very broad and it applies to every context of work life,including:• recruitment and selection• team working• communications.• pay and reward• training and development• progression and selection for promotion• discipline and grievance.Having acknowledged that each of us has to be equality-aware, it isappropriate for all of us to review equality in our workplaces to some extent.Our roles will determine the detail of such a review, but here, we will considerhow to put together an action list to implement measures for improvement,where these are needed.We have already mentioned ACAS in this course. ACAS is an independentorganisation funded by the Department for Business Innovation and Skills. Ithas a leading role in equality at work as it aims to improve organisations andworking life through better employment relations. It helps with employmentrelations by supplying up-to-date information and free independent advice. Itworks with employers and employees to solve problems and improveperformance.ACAS makes the recommendation that employers review, monitor and act inrelation to equality at work.ReviewThis involves taking the organisation’s existing equality policy and reviewingand updating it – or if necessary, writing a new one.What does your organisation’s policy look like? Have you read it lately?An equality policy should incorporate a statement of the employer’s:• aim to encourage, value and manage diversity• commitment to providing equality for all• wish to attain a workforce that is representative of the communities from which it is drawn to secure the widest pool of talent possible.
As well as clear identification of the areas of discrimination the employer willcounter.MonitorACAS suggest monitoring of how the organisation’s equal opportunities policyis working in practice. This calls for gathering individual personal informationon the diversity of potential recruits or existing employees, and comparing andanalysing this against:• other groups of employees in the company• jobseekers in the local community• jobseekers in the broader national employment market.ActingFinally, ACAS recommend taking action, where it is needed, to addressinequality or to promote diversity. This requires an action plan which detailswhat will be done, by when and by whom. The action plan should:• set dates on when things such as monitoring, reviewing procedures, and training will be done• expand on how these will be done and by whom• set out how harassment and bullying and will addressed• set measures of success including how and when these will be evaluated.Examples of actions arising from such a plan might include items which:• encourage more people to apply for posts by considering part-time working or job-sharing• lead to advertising widely to attract a diverse workforce• are targeted at working with the community and offering opportunities to students• address targets such as increasing the number of management jobs open to job sharing to allow more women to do them or interviewing more disabled people• implement positive action, where appropriate.
ConclusionsThe Equality Act of 2010 came about as a result of many previous pieces oflegislation, of developments in Europe and in case law, and of scepticism asto the real impact of legislation to date. This scepticism may be well foundedif we consider that despite all that has gone on before, in early 2010 still:• only 15 Members of Parliament were people of non-white British race – if parliament were to reflect the diversity of UK, there should be 60• only 3 top judges were people of non-white British race• fewer than 1 in every 6 top people in universities was a woman - 3 out of every 6 would be women if the number were fair• only 1 out of every 10 top people in big companies was a woman.It is clear that equality is an evolving area of the UK legal system. This meansthere is a real need for us all to keep up to date on events and thedevelopments in the legal arena.As we have seen, the jury is still out in some respects on just how and to whatextent the Coalition government implements the 2010 Act. Also, the defaultretirement age is to be scrapped and the impact of this is as yet, unknown.In terms of other developments, the government is drawing up a voluntaryNational Equality Framework for Business that will apply to the private sector.This is due to come into force in the Spring of 2011 and will be abenchmarking and improvement tool aimed at helping businesses betterunderstand equality legislation and set them on a path towards best practice.
Information SourcesACASwww.acas.org.ukEquality and Human Rights Commissionwww.equalityhumanrights.comBusiness Linkwww.businesslink.gov.ukEmployment Tribunalwww.employmenttribunals.gov.uk