The Equality Act 2010

The Equality Act 2010 • What has changed? • What has stayed the same? • Practical implications

Protected Characteristics • Age • Disability • Gender Reassignment • Marriage and Civil Partnership • Pregnancy and Maternity • Race • Religion or Belief • Sex • Sexual Orientation

Direct Discrimination • A discriminates against B if because of a protected characteristic A treats B less favourably than A treats or would treat others • Actual or hypothetical comparator

Some exceptions • Age: can be justified if proportionate means of achieving a legitimate aim. Retirement? • Disability: positive discrimination does not discriminate against non-disabled people • Marriage/Civil Partners: single people cannot claim discrimination – long honeymoons are ok! • Race: segregation explicitly direct discrimination • Sex: less favourable treatment because of breastfeeding explicitly direct discrimination • Sex: where B is a man, no account taken of special treatment for pregnancy or childbirth

Indirect Discrimination • A discriminates against B if A applies to B a provision criterion or practice which is discriminatory in relation to a protected characteristic of B’s • Discriminatory if • A applies or would apply it to persons who do not share B’s characteristic • It puts or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons who do not • It puts or would put B at that disadvantage • A cannot show it to be a proportionate means of achieving a legitimate aim

Indirect Discrimination – Protected Characteristics • Age • Disability – no knowledge of disability required • Gender Reassignment • Marriage and Civil Partnership • Race • Religion or Belief • Sex • Sexual Orientation

Harassment (1) • A harasses B if A engages in unwanted conduct related to a 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

Harassment (2) • A harasses B if A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect as in (1)

Harassment (3) • A harasses B if A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, the conduct has the purpose or effect as in (1) and because of B’s rejection or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct

Harassment • Must take into account • Perception of B • The other circumstances of the case • Whether it is reasonable for the conduct to have that effect

Harassment – Protected Characteristics • Age • Disability • Gender Reassignment • Race • Religion or belief • Sex • Sexual Orientation

Victimisation • A victimises 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 Act • Bringing proceedings under the Equality Act • Giving evidence or information in connection with proceedings under the Equality Act • Doing any other thing for the purposes of or in connection with the Equality Act • Making an allegation (whether or not express) that A or another person has contravened the Equality Act

Bad Faith • Giving false evidence or information or making a false allegation is not a protected act if it is in bad faith

Combined Discrimination • Not in force but not repealed • BUT case law developing… • Bahl v Law Society • MOD v DeBique: “discrimination is often a multi-facted experience … double disadvantage reflected the factual reality of her situation” • Khan v Gafoor • O’Reilly v BBC: age discrimination only but ET claimed existing law protects against combined discrimination – distinguishing Bahl • Women of child bearing age???

Pregnancy and Maternity Discrimination • A discriminates against a woman if in the protected period in relation to a pregnancy of hers A treats her unfavourably • Because of the pregnancy • Because of illness suffered by her as a result of it

Pregnancy and Maternity Discrimination • A discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave • A discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise the right to ordinary or additional maternity leave

Protected Period • Begins when pregnancy begins • Ends at the end of additional maternity leave or when she returns to work • Or if not entitled, ends at the end of the period of 2 weeks beginning with the end of the pregnancy

Unfavourably • No need for a comparator • EHRC Code examples • Capability issues related to pregnancy related illness • Unable to work because of Health and Safety issues related to pregnancy • Taking into account pregnancy related absences in decisions to dismiss

Changes to defining disability • New Guidance in force 1 May 2011 • Removes classifications of day to day activities – mobility, ability to lift etc. • Definition remains: • the person must have an impairment that is either physical or mental • the impairment must have adverse effects which are substantial • the substantial adverse effects must be long term and • the long-term substantial adverse effects must be effects on normal day-to-day activities

New forms of disability discrimination • Discrimination arising from disability • Indirect Discrimination • Changes to reasonable adjustments

Discrimination arising from Disability • A discriminates against B if A treats B unfavourably because of something arising in consequence of B’s disability • Justified if proportionate means of achieving a legitimate aim • Does not apply if A did not know and could not reasonably have been expected to know that B has the disability

Unfavourable treatment • No need for a comparator • EHRC Code: Unfavourable = put at a disadvantage • EHRC Code: even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably

Arising in consequence of disability • EHRC Code: must be a connection between whatever led to the unfavourable treatment and the disability • Sick leave • Need to attend hospital appointments • Capability • Inability to drive or use public transport

Knowledge • Employers should consider whether there is a disability even if not expressly disclosed – employee may not understand definition or have privacy concerns • If employer’s agent – eg Occupational Health – has knowledge or constructive knowledge, employer is treated as having it • BUT Hartman v South Essex Mental Health Community Care NHS Trust if employee discloses confidential information to outsourced OH, employer only deemed to have knowledge of information actually passed on

Duty to make adjustments (1) • Where a provision criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, requirement to take such steps as it is reasonable to have to take to avoid the disadvantage

Duty to make adjustments (2) • Where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, requirement to take such steps as it is reasonable to have to take to avoid the disadvantage

Duty to make reasonable adjustments (3) • Where a disabled person would but for the provision of an auxiliary aid be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as are reasonable to have to take to provide the auxiliary aid

Auxiliary Aid • EHRC Code: auxiliary aid = “something which provides support or assistance to a disabled person” • Examples • provision of a specialist piece of equipment such as an adapted keyboard or text to speech software • provision of a sign language interpreter or a support worker

Knowledge • A is not subject to the duty to make reasonable adjustments if A does not know and could not reasonably be expected to know that • an interested disabled person has a disability and • is likely to be placed at the disadvantage referred to in the requirement

The Equality Act 2010