Transcript Slide 1

Equality Act 2010
The Equality and Human
Rights Commission
Sarah Gilzean
Senior Solicitor
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What we will cover
• The Equality Act purpose and structure
• Protected characteristics
• Prohibited conduct
• The EHRC and its powers
• Our legal strategy
• Contact us
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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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Equality Act 2010
Also see:
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Regulations
Explanatory Notes
Codes of Practice
Non-statutory guidance
EHRC website
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Key concepts –
Protected characteristics
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Age (s 5)
Disability (s 6) slight change
Gender reassignment (s 7) slight change
Marriage and civil partnership (s 8)
Pregnancy and maternity (s18)
Race (s 9)
Religion and belief (s 10)
Sex (s 11)
Sexual orientation (s 12)
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Age (s.5)
• Where the Act refers to the protected
characteristic of age it means a person
belonging to a particular age group.
• An age group includes persons of the same age
and people of a particular range of ages
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Disability (s.6)
• A person has a disability for the purposes of the
Act if he or she: —
- has a physical or mental impairment, and
- the impairment has a substantial and longterm adverse effect on his/her ability to carry out
normal day-to-day activities.
• Schedule 1 and Regulations on meaning of
disability
• Guidance on matters to be taken into account in
determining questions relating to the definition of
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disability
Gender
reassignment (s.7)
• 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.
• Replaced similar provisions, but no longer requires
a person to be under medical supervision to come
within it.
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Marriage/civil
partnership (s.8)
• A person has the protected characteristic
of marriage and civil partnership if the
person is married or is a civil partner.
• People who are not married or in a civil
partnership do not have this characteristic
– i.e. single people are not protected.
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Race (s.9)
• Race includes — colour; nationality;
ethnic or national origins.
• Also power to amend the definition to
include caste.
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Religion or belief
(s.10)
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Covers any religion falling within Art 9 ECHR;
must have clear structure and belief system
Covers philosophical beliefs which meet
particular criteria
Includes a lack of belief/religion
A ‘philosophical belief’ must not be
incompatible with human dignity or conflict with
fundamental rights of others [see EN 52]
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Sex (s.11)
• The Act provides protection against sex
discrimination for males and females of any age.
• Note that while pregnancy and maternity
discrimination is a form of sex discrimination there
are distinct provisions in ss17 and 18
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Sexual orientation
(s.12)
Sexual orientation means a person’s sexual
orientation towards—
• persons of the same sex,
• persons of the opposite sex, or
• persons of either sex.
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Pregnancy and
maternity (s.17 & 18)
• Protects a woman from discrimination during a
protected period because of:
– The pregnancy
– Pregnancy-related illness
– Taking or seeking to take maternity leave
• The protected period
• New: includes protection from discrimination in
education
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Key concepts Prohibited conduct
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Direct discrimination (s 13)
Indirect discrimination (s 19)
Discrimination arising from disability (s 15)
Duty to make reasonable adjustments (ss 20 &
21)
• Harassment (s 26)
• Victimisation (s 27)
• Equality of terms (ss 64-80)
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Direct discrimination
A person (A) discriminates against another (B) if,
because of a protected characteristic, A treats
B less favourably than A treats or would treat
others.
• Discrimination by association or perception
included
• Direct discrimination can never be justified
however age discrimination remains justifiable
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Indirect discrimination
• A applies a provision, criterion or practice (PCP) to B
• A applies, or would apply, the PCP to persons with
whom B does not share the relevant protected
characteristic
• the PCP puts, or would put, persons with whom B
shares the characteristic at a particular disadvantage
when compared with persons with whom B does not
share the 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 person (A) harasses another (B) if A 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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3rd Party Harassment
• Three requirements for liability
– A third party harasses the employee in the
course of the employee's employment; and
– The employer has failed to take such steps as
would have been reasonably practicable to
prevent the third party from doing so; and
– The employer knew that the employee had
been harassed in the course of their
employment on at least two other occasions
by a third party
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Victimisation
• ‘A person (A) victimises another person (B) if A
subjects B to a detriment because (a) B does a
protected act, or (b) A believes that B has done,
or may do, a protected act.’
• Removes the need for the tribunal to construct
an appropriate comparator.
• ‘Protected acts’ include ‘relevant pay
disclosures’
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Reasonable
adjustments
• Where a disabled person is placed at a substantial
disadvantage to non-disabled people, there is a duty to
make changes to:
1. Provisions, criteria or practices
2. Physical features
3. And a duty to provide auxiliary aids and services (such
as a hearing loop or a special computer service)
• Express reference is made to providing information in an
accessible format and not passing on the cost of an
adjustment.
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What is reasonable?
• Would adjustment be effective;
• How practicable would it be to take make the
adjustment;
• Financial and other costs of making the adjustment;
• Disruption which making the adjustment would cause;
• Amount of resources already spent on making
adjustments; and
• Availability of financial or other assistance.
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Discrimination arising
from disability
• A person (A) discriminates against a disabled
person (B) if A treats B unfavourably because of
something arising in consequence of B’s
disability
• Discrimination arising from disability can be
justified if it is shown to be a proportionate
means of achieving a legitimate aim
• A must know or can reasonably be expected to
know that B has a disability in order for
discrimination to occur
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Enquiries about disability
and health
Section 60
• “(1) A person (A) to whom an application for work
is made must not ask about the health of the
applicant (B)(a) before offering work to B, or
(b) where A is not in a position to offer work to B,
before including B in a pool of applicants from
whom A intends to select a person to whom to
offer work.”
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Enquiries about disability
and health
Exceptions
• To ascertain if the person can undergo an
assessment or if reasonable adjustments to the
recruitment process are needed;
• For monitoring purposes;
• To ascertain if B can carry out some function that
is intrinsic to the post;
• To allow positive action for disabled people;
• Where there is an occupational requirement that
the job is done by a disabled person.
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The Public Sector Duty
In force since April 2011, sections 149 -157
• General duty on public authorities to have due
regard, when carrying out their functions, to the
need to:
• eliminate unlawful discrimination, harassment or
victimisation;
• advance equality of opportunity and foster good
relations
• in relation to each of the protected characteristics.
• underpinned by specific duties
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What’s not in force
• Socio-economic Duty on public bodies (s1)
• Combined discrimination: dual characteristics/ dual
discrimination (s14)
• Gender pay gap reporting (s78)
What’s being repealed
• Third party harassment provisions(s40)
• Power to make wider recommendations
(s124(3)(b))
• Questionnaire procedure (s138)
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What’s new
• Prohibition on age discrimination in services and
public functions and associations (s31)
• In force from 1 Oct 2012
• Direct and indirect, harassment and victimisation
• Subject to objective justification
• Exceptions:
– Financial services
– Age-based concessions
Slide Number 28
The Commission’s powers
• Intervene in Commission’s name (s30) [equality or
human rights or both]
• Judicial Review proceedings in Commission’s name
(s30) [equality or human rights or both]
• Provide legal assistance to an individual bringing
proceedings under the EA (s28) [equality or both, but not
human rights alone]
• Also other enforcement powers eg inquiries,
investigations
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EHRC strategic priorities
for using litigation powers
where the case would
• have a significant positive impact in terms of the
application of the law or the policies and practices of an
organisation, institution or sector
• have a positive public impact, securing greater
understanding of rights and obligations under the
equality enactments and/or human rights law
• address significant disadvantage in respect of one or
more of the protected grounds and/or major abuse or
denial of human rights
• challenge a policy or practice known to cause significant
disadvantage
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EHRC strategic priorities for
using litigation powers.....
• is a cost effective method of achieving a desired
outcome, taking into account the prospects of success
• clarifies an important point of law under the Equality Act
2010 or Human Rights Act
• will extend or strengthen protections and rights under the
Equality Act 2010 and, where it also applies, human
rights law;
• will contribute substantially to other areas of the
Commission’s work
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Further information
EHRC website information on Equality Act
http://www.equalityhumanrights.com/legal-andpolicy/equality-act/
Law Society of Scotland
http://www.lawscot.org.uk/about-us/equality--diversity
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The Commission’s legal
team in Scotland
• Strategic human rights and equality litigation
www.equalityhumanrights.com/legal-andpolicy/strategic-human-rights-and-equality-litigation/
• Legal Team Bulletin:
www.equalityhumanrights.com/scotland/legal-news-inscotland/equality-law-bulletin/
• Requests for assistance:
• [email protected]
Tel: Sarah Gilzean 0141 228 5984
Email: [email protected]
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