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Equality Act 2012 short guide

Understanding the Terminology - Defining Terms

Diversity

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 'equal opportunities'.

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

'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:

Equal Opportunities

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.

Discrimination

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 respects.

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 situation.

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 considerations.

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 legislation. 

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 by:

  • 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 strands
  • offering new mothers stronger protection when breastfeeding
  • 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 legislation

The Equality Act extends the prohibition for directly or indirectly discriminating to all 'protected characteristics' that will cover:

  • age
  • disability
  • marriage/civil partnership
  • pregnancy/maternity
  • race
  • religion or belief (including lack of belief)
  • sex
  • sexual orientation
  • transgender

Specific Key Components

New Equality Duty - Public Sector Single Equality Duty

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 to:

  • 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 it; and
  • 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 bodies.

The specific duties are likely to be different in England, Wales and Scotland.

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.

Gender identity

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 particular belief).

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 raceorgender.

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 harassment.

Pre-employment health questionnaires

Section 60 of the Act prohibits employers asking job applicants questions about their health and whether they have a disability.

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 age prejudicial:

  • 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 characteristic.

Protected Characteristics - Definitions

Age

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.

Disability

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.

Gender

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.

Gender Identity

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 the process.

Race

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.

Sexual Orientation

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 bisexual).                                                       

Important Legal Issues and Definitions

Adverse Impact

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.

Direct Discrimination

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.

Harassment

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 distressing.

Indirect Discrimination

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 break.

Institutional Discrimination

"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 Inquiry.

Macpherson's Report led to the first public duty - race Equality - and was the driving force behind the subsequent duties on disability and gender.

Multiple Discrimination

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.

Personal Liability

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

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.

Vicarious Liability

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 'reasonable steps':

  • 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, etc).

Victimisation

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.