Equality Act June 2011 Vs2

							         EQUALITY ACT 2010:
            An Overview

             Afshin Bemani
         Legal Officer & Solicitor
         Royal College of Nursing
Protected characteristics & types
Replaces all discrimination legislation,
   covering
all “protected characteristics” (sec. 4-12):
 Age,
 disability,
 gender reassignment
 Marriage & civil partnership
 Pregnancy and maternity
 Race
 Religion & belief
 Sex
 Sexual orientation

Main types of discrimination: direct, indirect,
victimisation, harassment, Combined/dual
   discrimination




                 Overview
Key changes:
 Harmonises definition of direct discrimination
  (covering associative and perceptive cases)
 Harmonises definition of indirect discrimination
  across all protected characteristics
 Harmonises concept of justification (proportionate
  means of achieving legitimate aim)
 Remove comparator in victimisation cases
 Harmonises definition of harassment (covering
  associative & perceptive)
 Introduction of combined discrimination (abandoned
    by Government)
   Concepts of discrimination arising from disability
    & indirect disability discrimination

                 Overview
   Direct sex discrimination claim in respect
    of pay based on hypothetical comparator
   Limit enforceability of contractual pay
    secrecy clauses
   Removal of need for being under medical
    supervision for gender reassignment &
    extension of indirect discrimination
   Enables tribunal to make
    recommendations about wider workforce
   New public sector duties (reduced after further
    consultation)
   Gender pay reporting (?)
     Direct discrimination
   Occurs where “because of a protected
    characteristic, A treats B less favourably than A
    treats or would treat others” (sec 13)
   “less favourably”: than real/hypothetical
    comparators whose circumstances (other than
    material characteristic) are not materially
    different.
   “because of” replacing “on ground of”. Tribunal to
    consider reason why someone treated less
    favourably
   Protection for employee who is associated with
    someone who has protected characteristics (e.g.
    Having disabled dependent)
   Protection for employee wrongly perceived to
    have protected characteristic (e.g. assumed to be
    gay)
   Cannot be objectively justified (except age)




       Indirect discrimination
   Involves acts, decisions or policies (broadly
    speaking) which are not intended to treat anyone
    less favourably, but which in practice have the
    effect of disadvantaging a group of people with a
    particular protected characteristic (e.g. being
    required to work full time).
   Elements of definition (sec. 19):
      Application of a provision, criterion or
        practice (PCP)
      Claimant must have relevant protected
        characteristic
      PCP equally applied to others who do not
        share characteristic
      PCP puts or would put others who share the
        characteristic at particular disadvantage
      PCP must also put claimant into disadvantage
      PCP cannot be justified as a proportionate
        means of achieving legitimate aim
      Indirect discrimination -
                  justification
   Burden on employer to prove justification
   Employer not entitled to rely on a margin
    of discretion or band of reasonable
    responses test [Hardys & Hanson Plc v Lax
    (2005)]
   Employer must show a legitimate aim
    corresponding to a real business need
   Until recently cost alone not sufficient,
    but can be a factor [Cross & others v BA
    (2005)]. It is now suggested in some circumstances
    cost alone could be sufficient justification
   Balancing act to see whether legitimate business
    aims are sufficient to outweigh the discriminatory
    impact on workforce, and claimant in particular,
    and whether those aims can be reasonably
    achieved by a less discriminatory method



                 Harassment
3 definitions:
• General definition: applies to all
   protected characteristics (except
   maternity & marital status);
   A harasses B if A engages in unwanted
    conduct related to a relevant protected
    characteristic which has the purpose or
    effect of either; (a) violating B's dignity, or (b)
    creating an intimidating, hostile, degrading,
    humiliating or offensive environment for B
   Must take into account: (i) B’s perception, (ii)
    the other circumstances of case, (iii) whether
    it is reasonable for the conduct to have that
    effect
   One off incident can amount to harassment.
    B need not made A aware that the conduct
    was unwanted




          Harassment II
       Relating to protected characteristic widely
        defined, e.g. Because of form it takes (e.g.
        racist banter being found offensive
        irrespective of someone’s race)
     Covers associative harassment & based on
        perception of having protected characteristic
     If conduct has effect rather than purpose of
        harassment (i.e. not intentional) must
        consider whether it was reasonable for
        conduct to have such effect. No liability if B is
        “hypersensitive”.
   Conduct of sexual nature: A also harasses B if A
    engages in unwanted conduct of a sexual
    nature, and the conduct has the purpose or
    effect referred to above
   Rejection or submission to harassment:
    unwanted conduct of sexual nature/relate to
    gender reassignment, because of rejection of or
    submission to conduct being less favourably
    treated


                Victimisation
It occurs where A subjects B to a detriment because
    either:
     B has done a protected act
     A believes that B has done, or may do, a protected
      act (sec 27)
   Protected acts:
      Brining claim under Equality Act
      Giving evidence or information in connection with
       such proceedings
      Doing any other thing in connection with Equality
       Act
      Alleging employer or someone else contravened
       Equality Act
   Giving false evidence/information is not protected
    if done in bad faith
   Not based on less favourable treatment so
    comparators no longer required (but to determine
    whether there is detriment to B, consideration of
    treatment of others by employer likely)


      Third party harassment
   Employers will be liable for the
    harassment of its employees by third
    parties, such as customers or visitors
    where:
      A third party harasses the employee in the
       course of the employee's employment;
      The employer 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 (whether or not the third party
        was the same person on each occasion) (sec.
        40(2))



              Disability – definition
   Deemed disabilities: Blindness, Cancer, HIV
    infection and multiple sclerosis, etc. (paragraph
    6(1), Schedule 1)
   Excluded conditions: alcoholism and substance
    addiction, exhibitionism, etc. (but impairment
    caused by them may be a disability).
   Definition: A person (P) has a disability if P has a
    physical or mental impairment, and the
    impairment has a substantial and long-term
    adverse effect on his ability to carry out normal
    day-to-day activities. (Section 6(1))
   Does the person have a physical or mental
    impairment?
      no need to establish a medically diagnosed cause for
       impairment
      It is the effect of an impairment that must be considered
       and not its cause
      'mental impairment' covers a wide range of impairments,
        including learning disabilities.

        Disability – Definition II
       No need to be medically well recognised mental condition
       focus on the effect the impairment has on an employee's
        day-to-day activities (e.g. When assessing stress &
        anxiety) (J v DLA Piper [2009]).
       quality of medical evidence can be important (medical
        certificate simply stating “depression” or “stress” may not
        be sufficient)
   effect on their ability to carry out normal
    day-to-day activities
       List of capabilities now removed (e.g. mobility, manual
        dexterity, etc).
       things people do on a regular or daily basis, and
        examples include shopping, reading and writing
       a person's abilities at work should be taken into account
        (e.g. career related exam - Patterson v Comm Police for
        Metropolis [2007])
   Substantial effect:
       "more than minor or trivial" (section 212)
       Some indicators: likely to recur, condition progressive,
        need of treatment
   Long term effect:
       lasted at least 12 months
       likely to be 12 months, or longer
       likely to recur will take into account the whole period




            DDA – new claims
   Disability arising from disability (sec 15(1)):
      Unfavourable treatment because of
        something arising in consequence of disability
      Employer cannot show treatment a
        proportionate means of achieving legitimate
        aim
      No comparator required (Malcolm case
        reversed)
      Not apply to disability by association
      Knowledge required (actual/could reasonably
        have known)
   Indirect discrimination: new to DDA
      PCP must affect other disabled employees
      Knowledge of disability not required
      Expected to be brought together with other types of
       DDA claims



           DDA – reasonable
             adjustments
3 situations:
•    provision, criterion or practice (PCP) puts a
     disabled person at a substantial disadvantage in
     comparison with those who are not disabled.
     Employer must take such steps as it is
     reasonable to have to take to avoid the
     disadvantage
•    Duty arises where physical feature puts a
     disabled person at a substantial disadvantage
•    Duty arises where disabled person would, but
     for the provision of an auxiliary aid, be put at a
     substantial disadvantage
        Auxiliary aid: something which provides
         support/assistance (e.g. Specialist equipment or support
         worker)
    Comparator: general and not individual
     compactor
    Reasonableness: consider extent to which
     adjustment would reduce disadvantage,
     practicality, costs & resources, etc.
    Whether adjustment would work? (extension of
     rehabilitation period simply to give opportunity to prove
     himself not reasonable)




        Pre employment health
              questions
   Prohibit employers from asking potential recruits
    questions about health, other than for a
    prescribed reason
   Prescribed reasons include:
      Whether can undergo an assessment (e.g. for
       interview)
      able to carry out a function that is intrinsic to the
       work concerned (absolutely essential to job, e.g.
       Climbing ladders in building site)
      Monitoring diversity
   not ask about a job applicant's health until either:
      Offered job (on conditional/unconditional
        basis); or
      Been included in pool of successful
        candidates to be offered job when arises
   Enforced by EHRC (not directly a tribunal claim)
   Discrimination not by merely asking questions
    about health but what is done in reliance on
    information


            Sex discrimination
   Direct discrimination:
      not every difference of treatment will constitute "less
       favourable treatment“ (e.g. difference in uniform not
       discriminatory, so long as standards set are equivalent)
      Disparity in disciplinary action: Nelson v Newry and
       Mourne District Council (difference in conduct of
        disciplinary procedure):
          • Must consider difference in circumstances (e.g.
             degree of blame, honesty & admission to guilt)
         • Need to determine whether making decision
            motivated by discriminatory intention
      Reason why test: must consider why employee treated
       less treated less favourably rather than simply show “but
       for” her sex she would not have been discriminated
       against. e.g. B v A [2007]; solicitor dismissed secretary
       after end of affair, not successful in claim as reason for
       dismissal was breakdown of relationship (importance of
       correct hypothetical comparator)

          Sex discrimination II
   Indirect discrimination: e.g. of legitimate aim in
    Blackburn and another v West Midlands Police [2008]: night
    shift bonuses discriminated against women with
    childcare, but allowed as legitimate aim to reward
    particularly demanding work
   Harassment: recent example: putting up with
    harassment for years not mean it is not
    unwanted. Nor does the fact that the employee
    initiated "banter" as a coping strategy (see
    Munchkins Restaurant Ltd and another v Karmazyn and
    others [2009])
   Equal pay law is now set out in specific "equality
    of terms" provisions (sections 64 to 80).
    Hypothetical comparator not allowed. But in
    relation to contractual pay can bring direct sex
    claim relying on hypothetical comparator (sec.
    71) [application likely to be limited as most claims
    are indirect discrimination]
          Race discrimination
   Definition of race includes:
      Colour.
      Nationality
      Ethnic or national origins (sec 9(1))
   ethnic origin: interpreted widely, encompassing
    religious and cultural differences as well as
    strictly racial differences
   Points on direct discrimination:
      Unreasonable behaviour no inference of
       discrimination (Bahl v Law Society [2004]) [could
       infer discrimination in absence of explanation for
       treatment]
      Comparator: importance of having same material
       circumstances [e.g. Filipino bar manager not
       promoted, but real white “comparators” had been.
       Not successful in claim as unlike them he never
       formally applied. Hypothetical comparator would
       have been treated no worse. Famy v Hilton hotels
       (2005)]




           Race discrimination -
                   harassment
Harassment:
Richmond Pharmacology Ltd v Dhaliwal [2009]
(ill judged but unintentional offensive comment)
3 elements of harassment:
•       Did employer engage in unwanted conduct?
•       Did conduct have purpose/effect of violating
        dignity or creating adverse environment?
•       Was conduct on ground of race/national origin
        etc?
•       Employer liable even if not acted intentionally
•       Test not subjective, if employee unreasonably
        prone to take offence, even if feelings
        genuinely held, there is no harassment




      Religious discrimination
   Religion or belief (sec. 10):
      Includes any religion, even lack of religion (broad
       definition, must have clear structure and belief
       system)
      any religious or philosophical belief
   Belief:
      Subjective, no requirement for it to be shared by
         others
        Belief in climate change capable of being
         philosophical belief
        Must be genuinely held
        belief as to a weighty and substantial aspect of
         human life
        certain level of cogency, seriousness
        worthy of respect in a democratic society
   Direct discrimination:
      Chondol v Liverpool City Council [2008]: dismissed
         for inappropriately promoting Christianity, no less
         favourable treatment because of religion but for
         attempting to convert others contrary to policy


    Religious discrimination II
Indirect discrimination:

   Ladele v London Borough of Islington [2010]: Christian
    registrar refused carry out civil partnership. A non
    discriminatory service was a legitimate aim, and
    requiring all registrars to provide it was proportionate

   Eweida v BA [2010]: policy forbade wearing of visible
    jewellery. Wearing of visible cross a personal decision
    motivated by faith, not lead to group disadvantage,
    held proportionate.

         Pregnancy & maternity
   Section 18 includes:
      Treating female job applicant /employee unfavourably
        during the protected period because of her pregnancy or
        because of an illness suffered by her as a result of her
        pregnancy
       Treats a female employee unfavourably because she is
        on compulsory maternity leave
   No need for comparator [“unfavourable rather than “less
    favourable” ]
   does not have to be the only reason for her treatment,
    but it does have to be an important factor or effective
    cause
   separate statutory rules in ERA 1996 re. relevant
    dismissal & detriment
   excluded from combined discrimination, indirect
    discrimination and harassment (but could have claim
    under sex discrimination)
   If potentially redundant, entitled to be offered any
    suitable available vacancy in priority to other potentially
    redundant employees
   on maternity leave be informed of any jobs become
    available, including opportunities for promotion and
    transfer, and must enable them to apply




            Age discrimination
   Covers person of particular age group (e.g. group
    such as over 50s, or a particular age)
   Legitimate aims justifying age discrimination
    include:
        Health, welfare and safety
        Facilitation of employment planning
        Particular training requirements
        Encouraging and rewarding loyalty
        The need for a reasonable period of employment before
         retirement
   Direct discrimination can be justified
   Default retirement of 65 to be abolished from 1 Oct
    2011. Employers either to abandon fixed retirement
    age or to retain it if it can be justified.
   From 1 Oct. 2011 it will no longer be lawful to refuse
    recruiting someone within 6 months of 65 or above that
    age (unless fixed retirement age maintained). These
    candidates to be considered on their merits

          Age Discrimination
   ACAS guidance (working without default
    retirement age):
      Discussion with employee re. future plans (at
       least annually)
      Avoid asking questions seem discriminatory
       (e.g. Why don’t you retire to avoid undignified sacking?)
      Ask open questions about employee’s future plans
       in short and long term
   When considering retirement;
      Give adequate notice of impending retirement
      Give consideration to any request by employee to work
       beyond retirement
   Legitimate aims in retirement situation could
    include:
      Workforce planning
      Facilitating recruitment and retention of younger
       employees
      Protecting dignity of older workforce (tainted with
       discrimination)
      Ensuring high quality of service (tainted with
       discrimination)
   Retirement to be proportionate: to consider
    alternatives (e.g. Fitness/competence tests), act
    consistently
        Gender reassignment
   Definition: 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 (sec. 7)
   Definition met where a person has proposed,
    started or completed a process to change
   no longer requiring a person to be under medical
    supervision to be protected:
      Protects who make a commitment... to live
        permanently in their non-birth gender", but
        not "transvestites or others who choose
        temporarily to adopt the appearance of the
        opposite gender”
           Sexual orientation
   Definition covers: person’s sexual orientation
    towards persons of sam sex, persons of opposite
    sex or persons of either sex (therefore protection
    for gay men, lesbians, bisexuals and
    heterosexuals)
   Harassment: e.g. English v Thomas Sanderson Ltd
    [2008], a repeatedly calling a colleague "faggot"
    amounted to sexual orientation harassment even
    though the victim was not gay and his
    tormentors did not perceive him to be gay


    Public Sector Equality Duty
   General duty came into effect 6 April 2011
   Duty extended to all protected characteristics,
    covers public bodies and organisations
    performing public functions (whether
    private/voluntary)
   General public equality duty is “having due
    regard” to:
      Eliminate unlawful discrimination, harassment and
       victimisation and other conduct prohibited by the
       Act.
      Advance equality of opportunity between people
       who share a protected characteristic and those
       who do not.
      Foster good relations between people who share a
       protected characteristic and those who do not
       (section 149)
   “Having due regard”:consciously thinking about
    the three aims of the Equality Duty as part of the
    process of decision-making



    Public Sector Equality Duty
   involves considering the need to:
      remove or minimise disadvantages suffered by
       people due to their protected characteristics;
      meet the needs of people with protected
       characteristics; and
      encourage people with protected characteristics to
       participate in public life or in other activities where
       their participation is low.
   Specific duties (for most public bodies) include:
      Publish sufficient information to demonstrate
       compliance with general duty (by July 2011, and
       then at least annually). Must include effect of
       policies and procedures (e.g. on staff)
      Prepare & publish equality objectives by 6 April
       2012 and every 4 years. What reasonably believe
       can achieve to meet one/more aims
   In May 2011 Government announced:
      Not imposing equality impact assessment
      Not require to publish engagements or analysis at
       time decision made
                Practical tips
   Ask member why s/he thinks; been
    discriminated/dismissed/disciplined etc.
   What makes the member think discriminated
    against.
   Any direct comparators (if so make a list of
    similarities And also difference in circumstances)
   Identify all acts of discrimination in last 3 months
   Beware of different types of time limits (e.g.
    failure to make reasonable adjustment not a
    continuous act of discrimination)
   Ask member whether ever alleged/complained of
    discrimination, and whether that can be proved. If
    not, ask why not submit grievance.
   Ask for details, and employer’s reaction
    (important for credibility)
   Consider whether there could be
    non-discriminatory explanations for events
   Establish any patterns


              Practical tips II
   If history of discrimination, establish when started, and
    seek timeline
   When recalling incidents ask member to concentrate
    on facts and not emotions
   Consider relevant policies (equal opportunities,
    attendance, redeployment, etc.) Have the relevant
    provisions been followed?
   Evidential strength? Gather and list the evidence
    before referral to legal (including details of witnesses,
    documents, matters from which inferences could be
    drawn)
   Always establish what the member wants (particularly
    if still employed)
   In DDA cases:
      Is member likely to be disabled? (check occ
       health/medical report)
      If in doubt invite the employer to consider (if disagree to
       give reason) & seek guidance from occ health
      Can the member show employer knew or should have
       known of disability?
      Consider possible adjustment (including advice from
       experts, access to work)
      What medical/other evidence necessary? (e.g. consent to
       release medical records)