Understanding the Terminology - Defining
The term 'diversity' is capable of many interpretations.
In the context of equalities work it is often taken to mean the
differences in the values, attitudes, cultural perspective,
beliefs, ethnic background, sexual orientation, ability or
disability, skills, knowledge, age and life experiences of
each individual in any group of people. It is not the same as
Valuing diversity refers to demonstrably valuing diverse employees
and clients/customers by having policies and procedures that take
their diverse needs and preferences into account.
'Equality' (or 'Equalities') is a shorthand term referring to
the range of work aimed at ensuring the full and fair participation
of marginalised or under-represented groups, where these groups may
be excluded from full and fair participation as a result of
discrimination and disadvantage, or other barriers. This has
a particular reference to age, disability, marriage/civil
partnership, pregnancy/maternity, race, religion or belief, sex,
sexual orientation or transgender..
Other Associated Terms:
This is the development of practices that promote the
possibility of fair and equal chances for everyone, so that they
may develop their full potential in all aspects of life. It
is concerned with the removal of the barriers to discrimination and
disadvantage which are experienced by certain groups.
Direct discriminationunder the law means treating a person less
favourably on grounds of their colour, race, nationality, ethnic or
national origin, sexual orientation, religion or belief, age,
gender or marital status, gender identity, or for reasons relating
to a person's disability.
Indirect discrimination occurs when a rule, condition or
requirement, which applies equally to everyone, has a
disproportionately adverse effect on people from a particular group
(ie due to age, disability, marriage/civil partnership,
pregnancy/maternity, race, religion or belief, sex, sexual
orientation or transgender), and there is no objective
justification for the rule.
The Equality Act 2010
On Monday 27th April 2009, the outgoing Labour
government published the Equality Bill. It received Royal
Assent on 8th April 2010, becoming the Equality Act
2010. One of the key aims of the Equality Act is to harmonise
current equality legislation. It also aims to widen the scope
of discrimination law and reinterpret it in a number of key
The Coalition government temporarily suspended the October 2010
timetable for broad implementation but this has now been
restored. Most of the provisions of the Act came into effect
in October 2010; however, the public sector duties will not come
into place until April 2011. Commencement dates for other
provisions are not set out in the Act itself and the change of
government will almost certainly result in a different timetable.
This briefing includes an indicative timetable about other
implementation dates, underscored with speculative commentary on
certain key components of the Act, given the prevailing political
The following notes provide only a brief summary of some of the
provisions of the Equality Act 2010. Nevertheless, these are
the key components and further information can be provided on
request. The training briefing you have attended was designed to
take you through these components which embellish and detail not
only the Equality Act but the other drivers on the equality and
diversity agenda, ie the demographic, economic and cultural
Overview of the Equality Act
The Equality Act replaces the Equal Pay Act 1970, the Sex
Discrimination Act 1975, the Race Relations Act 1976, the
Disability Discrimination Act 1995, much of the Equality Act 2006,
the Employment Equality (Religion or Belief) Regulations 2003, the
Employment Equality (Sexual Orientation) Regulations 2003, the
Employment Equality (Age) Regulations 2006, and the Equality Act
(Sexual Orientation) Regulations 2007 (where applicable, as
subsequently amended), plus other ancillary pieces of
Scope of the New Equality Act - Key Points
Although most of the current discrimination legislation will
still apply, the Equality Act will change our equality law by
harmonising and extending existing legislation. It does this
- putting a new Equality Duty on public bodies
- using public procurement to improve equality
- banning age discrimination outside the workplace
- introducing gender pay reports -repealed
- extending the scope to use positive action
- strengthening the powers of Employment Tribunals
- widening the scope of Associated Discrimination to all
- offering new mothers stronger protection when
- banning discrimination in private clubs
- strengthening protection from discrimination for disabled
people to the new concept of associated discrimination - covering
all the strands, and
- introducing a new public sector duty to consider reducing
socio-economic inequalities -repealed
Harmonisation and extension of existing
The Equality Act extends the prohibition for directly or
indirectly discriminating to all 'protected characteristics' that
- marriage/civil partnership
- religion or belief (including lack of belief)
- sexual orientation
Specific Key Components
New Equality Duty - Public Sector Single Equality
The Act introduces a new 'single' equality duty to replace the
existing race, disability and gender equality duties by 2011.
The new equality duty will require all public bodies, in the
exercise of their functions, to have 'due regard' to the need
- eliminate discrimination, harassment, victimisation and any
other conduct that is prohibited;
- advance equality of opportunity between persons who share a
relevant 'protected characteristic' and persons who do not share
- foster good relations between persons who share a relevant
'protected characteristic' and persons who do not share it.
The public sector equality duty applies to the protected
characteristics of age, disability, gender identity, pregnancy and
maternity, race, religion or belief, sex and sexual orientation.
This represents a significant widening of the obligations in
respect of race, disability and gender currently placed on public
The specific duties are likely to be different in England, Wales
Disability - Changes
The Act provides for 'detriment arising from disability', which
clarifies and widens protection against disability discrimination.
The Act abandons the current list of capacities, relying
instead on the general requirement that impairment has a
substantial and long-term effect on a person's ability to carry out
normal day-to-day activities.
This is given a broader definition than under the Sex
Discrimination Act 1975. Under the Equality Act a person is
protected if that person is proposing to undergo, is undergoing, or
has undergone a process (or part) for the purpose of reassigning
their sex by changing physiological or other attributes of sex.
The provision removes the previous requirement for the
process to have to be undertaken under medical supervision.
So it will cover, for example, someone who is born physically
male but who decides to live permanently as a woman.
Discrimination by association or perception
Extends the scope of the legislation to protect people who
'associate' with others with the protected characteristics, for
instance people who are related to or who care for someone who is
disabled. Protection includes perception (eg discrimination
based on the belief that someone is gay, or disabled, or has a
Dual discrimination (from April 2011)
This outlaws discrimination on the basis of two protected
characteristics for example someone claims discrimination because
they are a black woman rather than just because of their
Positive action on recruitment and promotion
Extends the range of lawful positive action, enabling employers
to choose someone for a job from an underrepresented group when
there is a choice between two or more candidates who are equally
qualified. Discussions within the coalition government are
ongoing regarding this aspect of the Equality Act.
Recommendations by tribunals
Allows employment tribunals to make recommendations in
discrimination cases which apply to the whole workforce.
Third party harassment
The Act extends protection against third-party harassment to all
protected characteristics (other than pregnancy/maternity and
marriage/civil partnerships), where the employer has failed to take
such steps as would have been reasonably practicable to prevent the
Pre-employment health questionnaires
Section 60 of the Act prohibits employers asking job applicants
questions about their health and whether they have a
Equal Pay - Repealed
The Act provides for increased transparency in respect of equal
pay. It also contains a power to require reporting on the
gender pay gap by employers with 250 or more employees.
However the government has committed not to use this power
before 2013 and it will only be used if sufficient progress on
reporting has not been made.
The Equality and Human Rights Commission will develop a set of
metrics for gender pay reports in consultation with business,
unions and others. The Commission will also monitor progress
on reporting within the private sector annually. Other
discussions within the coalition government about this aspect of
the Equality Act are ongoing.
Procurement - Contract Compliance
The Equality Act allows public bodies to use procurement to
further equality objectives when they are buying goods and services
from private sector firms or indeed the voluntary sector.
This will be consulted on.
For example, a council commissioning a construction project for a
social regeneration scheme could require the contractor to run a
positive action programme to train women in under-represented areas
such as plumbing or carpentry, or pre-qualification criteria could
be stated. £175 billion was spent last year by the public
sector on procuring contracts.
Age Discrimination - New Provisions
The employment provisions of the Age Discrimination Regulations,
introduced in 2006, will be extended to the provision of goods,
facilities and services. This will potentially take us into
scenarios of the sort profiled below which have long been argued as
- NHS patients being told to expect poor health at 'their age' or
being refused treatment altogether
- Travel, health and motor insurance cover being withdrawn beyond
a certain age or is just being too expensive
Coalition government discussions about the continued provision
of free bus passes for the elderly are ongoing, and it will be
interesting to see if any announcements arise in the forthcoming
public spending review which will impact on this protected
Protected Characteristics - Definitions
An age group includes people of the same age and people of a
particular range of ages. Where people fall in the same age
group they share the protected characteristic of age.
This protected characteristic defines a disabled person as
someone who has a physical or mental impairment that has a
substantial and long-term adverse effect on his or her ability to
carry out normal day-to-day activities. The social rather
than the medical model of disability is used in considerations
around making a reasonable adjustment.
This section is a new provision, which explains that references
in the Act to
people having the protected characteristic of gender are to mean
being a man or a woman, and that men share this characteristic with
other men, and women with other women.
The protected characteristic of transgender for the purposes of
law is where a person has proposed, started or completed a process
to change his or her sex. A transsexual person has the
protected characteristic of transgender.
A woman making the transition to being a man and a man making
the transition to being a woman, both share the characteristic of
transgender, as does a person who has only just started out on the
process of changing his or her sex, and a person who has completed
People who have or share characteristics of colour*, nationality
or ethnic or national origins, can be described as belonging to a
particular racial group. A racial group can be made up of two
or more different racial groups. A Minister of the Crown can
amend the Act by order so as to add 'caste' to the current
definition of 'race'. The term 'caste' denotes a hereditary,
endogamous (marrying within the group) community associated with a
traditional occupation, and ranked accordingly on a perceived scale
of ritual purity. It is generally (but not exclusively)
associated with South Asia, particularly India.
*Colour includes being black or white.
Religion or Belief
This is the protected characteristic of religion or religious or
philosophical belief, which is stated to include for this purpose a
lack of religion or belief. It is a broad definition in line
with the freedom of thought, conscience and religion guaranteed by
Article 9 of the European Convention on Human Rights. The
main limitation for the purposes of Article 9 is that the religion
must have a clear structure and belief system. Denominations
or sects within a religion can be considered to be a religion or
belief, such as Protestants and Catholics within
Christianity. The criteria for determining what is a
'philosophical belief' are that it must be genuinely held; be a
belief and not an opinion or viewpoint based on the present state
of information available; be a belief as to a weighty and
substantial aspect of human life and behaviour; attain a certain
level of cogency, seriousness, cohesion and importance; and be
worthy of respect in a democratic society, compatible with human
dignity and not in conflict with the fundamental rights of
others. So, for example, any cult involved in illegal
activities would not satisfy these criteria.
The protected characteristic of sexual orientation is defined as
being a person's sexual orientation towards: people of the same sex
as him or her (in other words the person is a gay man or a
lesbian), people of the opposite sex from him or her (the person is
heterosexual), or people of both sexes (the person is
Important Legal Issues and Definitions
Adverse impact is the extent to which a policy disadvantages one
or more of the protected characteristics.
Burden of Proof
The burden of proving discrimination was changed in 2001 by the
Burden of Proof Regulations 2001. Once an individual can show
that there is an issue of potential discrimination, the burden of
proof shifts to the employer to defend the case and show that the
reason for difference in treatment is justifiable and not
discriminatory. This represents an important change:
previously the complainant had to prove that they had been
discriminated against, now the employer needs to prove that they
did not discriminate.
Treating someone less favourably on prohibited grounds
(gender/gender identity/race/disability/sexual orientation/religion
or belief/age/socio-economic status) than another would be treated
in comparable circumstances, where the treatment cannot be
objectively justified (eg by a genuine occupational
requirement). Direct discrimination is unlawful under all
anti-discrimination law. Example: Failing to offer a man a
job because he is gay.
Genuine Occupational Requirements (GORs)
In strictly limited situations, each piece of
anti-discrimination legislation allows for a job to be restricted
to a person of a particular gender/race or ethnic or national
origin/disability status/sexual orientation/religion or belief/age
if it is proportionate to apply a GOR to the job. GOR supersedes
the term 'Genuine Occupational Qualification'. Example:
Requiring a woman to work at a women's refuge.
Unwanted conduct that violates people's dignity or creates an
intimidating, hostile, degrading, humiliating or offensive
environment. This definition is limited to
anti-discrimination legislation and therefore only applies to
harassment on grounds of sex/race/disability/sexual
orientation/religion or belief/age. Example: Colleagues of a
Muslim worker refer to him as Saddam which he finds offensive and
Applying a provision, criterion or practice which disadvantages
people of a particular group unjustifiably or disproportionately
(where that group is by defined by sex, race, disability, sexual
orientation, religion or belief or age). Example: Requiring
job applicants to have a set number of years experience may
indirectly discriminate against women who have taken a career
"The collective failure of an organisation to provide
appropriate and professional service to people because of their
colour, culture or ethnic origin. It can be seen or detected
in processes, attitudes and behaviour which amount to
discrimination through unwitting prejudice, ignorance,
thoughtlessness, and racist stereotyping which disadvantages
minority ethnic people."Macpherson Report - Stephen Lawrence
Macpherson's Report led to the first public duty - race Equality
- and was the driving force behind the subsequent duties on
disability and gender.
Occurs when for more than one reason a person is treated less
favourably than others with those characteristics in the same or
similar circumstance, unless there is an objective reason for doing
so. Example: an ethnic minority female wheelchair user who
could be treated less favourably for a combination of these reasons
simultaneously. In this example all three forms of
discrimination are unlawful in their own right.
Where an employer can show that appropriate steps have been
taken to avoid discrimination, it is likely that the discriminator
will be personally liable in the law.
Positive Action is often confused with positive
discrimination. Positive discrimination, which generally
means employing someone because they come from a deprived group in
spite of whether they have the relevant skills and qualifications,
is unlawful. The term 'positive action' refers to a number of
methods designed to counteract the effects of past discrimination
and to help abolish stereotyping.
Action can be taken to encourage people from particular groups
to take advantage of opportunities for work and training.
This can be done when underrepresentation of particular groups has
been identified in the previous year. Under this broad
meaning, positive action may include initiatives such as the
introduction of non-discriminatory selection procedures, training
programmes or policies aimed at preventing sexual harassment.
Pressure to discriminate
It is unlawful for a person with authority or influence over
another to induce them to discriminate, or to put pressure,
directly or indirectly, on another person to discriminate. It
is also unlawful for a person to give in to instructions or
pressure to discriminate.
Employers are responsible for the discriminatory actions of
their employees where such actions have been carried out during the
course of their duties. The only defence for employers is to
show that they have done everything reasonably practicable to
prevent an employee committing an unlawful act.
In practice, Courts and tribunals have regarded the following as
- Publishing a comprehensive equal opportunities policy.
- Clearly communicating the policy to all staff.
- Providing awareness training on the potential for, and
implications of, discrimination.
- Training staff in good practice relevant to their jobs (eg
recruitment, record keeping, monitoring and adopting accepted codes
of practice in relation to employment and service provision,
Treating people less favourably because they have made a
complaint or intend to make a complaint about discrimination or
harassment, or have given evidence or intend to give evidence
relating to a complaint about discrimination or harassment.
Example: A worker gives evidence for a colleague who has brought an
Employment Tribunal claim against the organisation of
discrimination on grounds of race. When that worker applies
for promotion her application is rejected even though she is able
to show she has all the necessary skills and experience. Her
manager maintains she is a 'troublemaker' because she had given
evidence at the Tribunal and therefore should not be promoted.