Equality & The Law

1. Equality & The Law Bruce Caldow, Harper McLeod

2. Equality and the Law - Update Bruce Caldow 31 August 2017

3. Overview Refresher Board representation Equal “pay”; equal exposure? Commercial relationships Trans – new guidance Complaints Investigations – practical points

4. 1. Refresher - the legal framework Equality Act 2010 Gender Recognition Act 2004 European Convention on Human Rights Article 14

5. 1. The “protected characteristics” Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion and belief Sex Sexual orientation Political beliefs

6. 1. Key components Equality Act 2010 Direct discrimination Indirect discrimination Victimisation Harassment Disability related discrimination Failure to make reasonable adjustments for disabilities

7. 1. Key components Equality Act 2010 The “equality duty” Individual liability Employer’s liability

8. 1. Sporting exceptions Section 195 • Ss1 – Sex • Participation in competition • In gender-affected activity (ss3) • Ss2 – Gender reassignment • If necessary to secure fair competition or safety of other competitors • In gender affected activity

9. 1. Sporting exceptions Section 195 • Age • If necessary to secure fair competition or the safety of competitors; to comply with the rules of national/international competition; to increase participation in that activity • Ss5 - race • Selecting persons to represent a country, place or area or doing anything in pursuance of the rules relating to eligibility to compete

10. 2. Board representation • Goal of greater gender representation where uneven • Growing calls to extend diversity beyond male / female analysis? • Care must be taken in recruitment / appointment • Positive action is permissible • Positive discrimination can be tricky

11. 3. Equal “pay”; equal exposure? Gender pay gap reporting for large employers now mandatory Encouraging a cultural change where “equal pay legislation” has not? Consider whether useful for your SGB – and in what form

12. 3. Equal “pay”; equal exposure? Equal exposure?

13. 4. Commercial relationships Indirect discrimination?

14. 4. Access, rules, adjustments Accessing and participating in sport – rules that restrict may indirectly discriminate and so may need to be “objectively justified” Positive developments with SGBs in Scotland

15. 4. Access, rules, adjustments Recent Supreme Court determination – FirstGroup Plc v. Paulley [2017] UKSC 4 Do more than simply request? Exercise “moral pressure”? Suggestive of a broader push to promote equality more actively? Consistent with the general positive duty on public authorities Impact on sports?

16. 5. Trans – new guidance Institute for Employment Studies together with ACAS – published research paper on "Supporting trans employees in the workplace" (*August 2017)  What do "good practice" employers do? Policies; implementation; coming out; occupational safety and health Personal, sensitive data Promoting positive workplace relationships, training and development

17. 5. Trans – new guidance Institute for Employment Studies together with ACAS – published research paper on "Supporting trans employees in the workplace" (*August 2017)  Barriers, challenges and suggestions for change Obstacles to greater inclusion of trans or intersex employees How could trans or intersex employees be better supported  3 case studies with employers

18. 6. Complaints British Cycling & Annamarie Phelps Report

19. 6. Complaints British Cycling & Annamarie Phelps Report 100 contributions 40 interviews Good governance lacking & “power pockets” “A culture of fear” or “referred to a culture of fear”?

20. 6. Complaints The Football Association & Eni Aluko Mark Sampson’s behaviour towards Aluko and team-mates Contrast to Roy Hodgson & Andros Townsend in October 2013?

21. 7. Investigations – practical points Investigation is critical to credibility and fair outcome – planning is essential Appointing investigator Establish the objective Establish the remit of the investigator Keeping it confidential? Predict relevant parties and evidence in scope

22. 7. Investigations – practical points Adopt an informal approach with caution Formality has positives Define interaction with others and separate roles Preserve evidence & properly take statements Mind-set is crucial – investigate, not defend, nor prosecute Apply same diligence to finding evidence that damns as praises Must be balance!

23. 7. Investigations – practical points How much investigation is required? Does the seriousness of the allegations have a bearing? Set and stick to timescales! Failure to speak to relevant witnesses is problematic; failure to “corroborate” is not Avoid “fishing” – follow lines of enquiry… Anonymity? Fail to follow-up = fail

24. 7. Investigations – practical points Concise and clear reporting List investigation carried out Don’t paraphrase Make recommendations Let others decide on next steps

25. Contact details Bruce Caldow Partner t: 0141 227 9339 m: 07884 112 047 e: bruce.caldow@harpermacleod.co.uk