Transcript Slide 1

The Equality Act 2010
&
The Equality and Human Rights
Commission
Lynn Welsh
Head of Legal
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Equality Act 2010
Slide Number 2
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)
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Key concepts –
Protected characteristics
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Age
Disability
Gender reassignment
Marriage and civil partnership
Pregnancy and maternity
Race
Religion and belief
Sex
Sexual orientation
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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.
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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.
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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)
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Key concepts Prohibited conduct
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Direct discrimination
Indirect discrimination
Harassment
Victimisation
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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
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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.
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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
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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)
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Exceptions – other
• Charities (s193 & s194)
• Competitive sports (s195)
• Gender reassignment harassment in schools
(s85(10(a))
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Role and power of the
Commission
Slide Number 14
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
General duties
• Promote equality and diversity
• Promote human rights
• Promote good relations between groups
• Monitor the law
• Monitor progress towards change
Commission powers
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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
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
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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.
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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
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The Commission’s legal team
in Scotland
• Strategic human rights and equality litigation
www.equalityhumanrights.com/legal-and-policy/strategichuman-rights-and-equality-litigation/
• Legal Team Bulletin
www.equalityhumanrights.com/scotland/legal-news-inscotland/equality-law-bulletin/
• Requests for assistance:
[email protected]
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