The Equality Act 2010 and The Equality and Human Rights Commission

1. The Equality Act 2010 & The Equality and Human Rights Commission Lynn Welsh Head of Legal

2. Equality Act 2010

3. Equality Act 2010 16 Parts; 28 Schedules – eg: • Key concepts (P2 and sch 1) • Services and public functions (P3, sch 2&3) • Premises (P4, sch 4&5) • Work and employment services (P5, Sch 6,7,8 & 9) • Education (P6, Sch 10,11,12,13 &14) • Associations (P7, Sch 15 &16) • Other unlawful conduct (P8) • Enforcement (P9, sch 17) • Advancing equality (P11, Sch 18 &19) • Exceptions (P14, sch 22 &23)

4. Key concepts – Protected characteristics • Age • Disability • Gender reassignment • Marriage and civil partnership • Pregnancy and maternity • Race • Religion and belief • Sex • Sexual orientation

5. Gender reassignment • Where a 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.

6. Summary of definition A person is protected from discrimination if they: • Have proposed to undergo gender reassignment • Are in the process of reassigning their sex • Undergone the process, or part of the process, previously • It may include medical gender reassignment treatment, but does not require medical treatment.

7. Gender Recognition Certificates Holders of Gender Recognition certificates must be treated according to their acquired gender. • Can have a GRC despite being pre-operative (and not visually indistinguishable from acquired gender). • May not have a GRC (out of choice, due to cost or due to being married and not wishing to divorce)

8. Key concepts - Prohibited conduct • Direct discrimination • Indirect discrimination • Harassment • Victimisation

9. Direct discrimination • A discriminates against B if, because of a protected characteristic, A treats B less favourably than he treats or would treat others. • Discrimination by association or perception included • Direct discrimination can never be justified except in relation to age

10. Indirect discrimination • A applies a provision, criterion or practice (PCP) to everyone • The PCP puts, or would put, people with a particular characteristic at a disadvantage when compared with people without that characteristic • The PCP puts, or would put, B at that disadvantage and • The PCP is not a proportionate means of achieving a legitimate aim.

11. Harassment • A harasses B if he engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. • Includes association and perception

12. Exceptions to services and public functions • Insurance (Sch 3, Part 5, para 22 & 23) • Marriage (Sch 3, Part 6) • Separate and single sex services (Sch 3, Part 7) • Communal accommodation (Schedule 23, Para 3)

13. Exceptions – other • Charities (s193 & s194) • Competitive sports (s195) • Gender reassignment harassment in schools (s85(10(a))

14. Role and power of the Commission

15. Equality and Human Rights Commission • Established October 2007 as the Commission for Equality and Human Rights • Replaced EOC, CRE, DRC • With a remit to cover nine equality strands and human rights in GB • But excluding issues which would be addressed by the Scottish Human Rights Commission

16. General duties • Promote equality and diversity • Promote human rights • Promote good relations between groups • Monitor the law • Monitor progress towards change

17. Commission powers • To provide information and advice • Conduct inquiries • To publish codes of practice • To make grants • Enter into binding agreements • Enforce the public sector duties - assessments and compliance notices

18. Legal powers • Provide legal assistance to an individual bringing a claim under the EA, or which involves equality and human rights, but not human rights alone • Intervene in cases at any level, which involve equality or human rights or both • Bring Judicial Review proceedings in Commission’s name, which involve equality or human rights or both • Apply for an interdict • Conduct investigations, including issuing unlawful act notices, and action plans

19. EHRC strategic priorities for using litigation powers Where action would: • bring a significant positive impact in terms in an organisation or across a sector • create greater understanding of rights and obligations under the equality enactments or human rights law • address significant disadvantage or major abuse or denial of human rights • clarify an important point of law under the Equality Act 2010 or Human Rights Act • extend or strengthen protections and rights under the Equality Act 2010 and human rights law.

20. Test case issues • ‘proposing’ to undergo gender reassignment – how someone ‘manifests’ this proposal • Association and perception • Indirect Discrimination • Public functions • Discrimination and harassment in schools • Occupational Requirements complying with EU Framework Directive • GRCs in single sex services/communal accommodation • When someone without a GRC should be recognised for purposes of exceptions? • Insurance exception • Discrimination by Associations • Instructing and causing discrimination

21. The Commission’s legal team in Scotland • Strategic human rights and equality litigation www.equalityhumanrights.com/legal-and-policy/strategic-human-rights-and-equality-litigation/ • Legal Team Bulletin www.equalityhumanrights.com/scotland/legal-news-in-scotland/equality-law-bulletin/ • Requests for assistance: legalrequestscotland@equalityhumanrights.com