Equality Act 2010 Employment

1. Equality Act 2010Employment EQUALITY ACT 2010 EMPLOYMENT Andrew Stafford QC Antony Sendall • ANDREW STAFFORD QC • ANTONY SENDALL

2. Route Map • Purpose of the Act • Structure • What’s in force • Protected characteristics • Prohibited conduct • Equality of terms • Positive action • Public Sector Equality • Pre-employment health checks • Pay secrecy • Extension of ET powers

3. Purpose of the Act (1) • Note the ambition of the Act, as evidenced by the pre-amble • “An Act • - to make provision to require Ministers of the Crown & others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; • - to reform & harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics; • - to enable certain employers to be required to publish information about the differences in pay between male and female employees; • - to prohibit victimisation in certain circumstances; • - to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct; • - to enable duties to be imposed in relation to the exercise of public procurement functions; • - to increase equality of opportunity; • - to amend the law relating to rights and responsibilities in family relationships; and for connected persons.”

4. Purpose of the Act (2) • Thus, the Act draws together and attempts to harmonise equality laws • BUT also • Creates new obligations relating to the discharge of functions within the public sector • Amends & reforms the law in various areas.

5. Purpose the Act (3) • Some of the provisions will be brought into force very soon • Some are still under discussion • Some are likely to be binned if the Conservatives get their way (e.g. publicising male/female pay rates)

6. What is Codified • Equal Pay Act 1970 • SDA 1975 • RRA 1976 • DDA 1995 • Religion Regs 2003 • Sexual Orientation Regs 2003 • Age Regs 2006

7. What is harmonised/implemented • Council Directives • 2000/43/EC (equal treatment race) • 2000/78/EC (equal treatment employment) • 2004/113/EU (equal treatment goods & services) • 2006/54/EC (equal opportunities for men and women)

8. What to watch out for • 16 Parts • 28 Schedules • Scope for the introduction of 30 sets of regulations • Scope for further guidance & Codes (but current Codes remain in force until revoked – see Section 42)

9. Where to find out more • Explanatory notes – all 1,000+paragraphs • http://www.legislation.gov.uk/ukpga/2010/15/notes • Law Society Guide to the Equality Act

10. Structure • Part 1 – imposes duty on public bodies to take account of socio-economic factors • Part 2 & Sch 1– key concepts (i.e. sex, race, age, religion, disability etc…) • Part 5 & Sch 6-9– discrimination in the context of work & employment • Part 8 – ancillary forms of prohibited conduct, including accessory liability • Part 9 & Sch 17– Enforcement • Part 10 Renders void/unenforceable contractual terms which result in discrimination etc… • Part 11 & Sch 18 & 19 – general duty on public authorities to advance equality • Part 16 & Sch 24-28 – confers on minister power to harmonise with EU law, make subordinate legislation

11. 1st October 2010 • The first wave of implementation • Essentials of discrimination – direct & indirect; victimisation; harassment • BUT NOT provisions relating to • Socio-economic duty, dual discrimination, publication of pay data & positive action in recruitment • www.equalities.gov.uk/equality_bill.aspx

12. How it works (broadly) • Sections 39-60 create substantive obligations on employers and others not to discriminate • Sections 13-26 describe what is meant by the concept of discrimination (“prohibited conduct”) • Sections 1-12 explain what sorts of characteristics fall within the scope of discrimination (“protected characteristics”) such as sex, race, etc…

13. Protected Characteristics • Age • Disability • Gender Reassignment • Marriage & Civil Partnership • Pregnancy and Maternity • Race • Religion or Belief • Sex • Sexual Orientation

15. Age • No change to definitions • Only characteristic where can justify direct • New: Associative • New: Harassment by 3rd Party • Default retirement age of 65 • Changes to harassment • Changes to victimisation

16. Disability (1) • New definition: s.6(1): “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 P’s ability to carry out normal day to day activities” • Removal of affected capacities

17. Disability (2) • New protection: “arising from disability” – s.15 • Must know or be expected to know disabled • Only justifiable if proportionate means of achieving a legitimate aim

18. Disability (3) • New: Indirect discrimination • Evidential issues: different types/degrees of impairment • Disability related discrimination recast • Effects of L.B. Lewisham -v- Malcolm reversed

19. Disability (4) • New: Associative • New: Perceptive • New: Harassment by 3rd Party • Pre-employment health questions (below) • Changes to harassment • Changes to victimisation

20. Gender Reassignment • New definition: no need for medical supervision • No protection for cross-dressers • ACAS: Hormone treatment – treat as if ill ! • New: Associative • New: Perceptive • New: Indirect • New: Harassment by 3rd Party • Changes to harassment • Changes to victimisation

21. Marriage & Civil Partnership • No change to definitions • Not covered: Associative • Perception • Harassment • Harassment by 3rd party • Changes to victimisation • Not included in combined discrimination

22. Pregnancy or Maternity • No change to definitions • No sex during pregnancy or maternity ! Ss.17(6) and 18(7) • No a/c of pregnancy illness in recruitment • Changes to victimisation • Not included in combined discrimination

23. Race • ‘Twin track’ anomalies to go: ‘race’ includes colour, nationality and ethnic or national origins. • Power to amend to include “caste” • Racial group can be 2 or more racial groups (Black Briton) • Changes to harassment • Changes to victimisation

24. Religion or Belief • No change to definitions • Religion includes any religion or lack of religion • Philosophies or lack of • Applies even if same religion • Must have clear structure and belief system • Changes to harassment • Changes to victimisation

25. Sex • No change to definitions • New: Associative • New: Perception • Changes to victimisation

26. Sexual Orientation • No changes to definitions • New: Harassment by 3rd Party • Changes to harassment • Changes to victimisation

27. Prohibited Conduct (1) • Direct discrimination (Section 13) • Indirect discrimination (Section 19) • Harassment (Section 26) • Victimisation (Section 27) • Combined discrimination (Section 14) • Ancillary prohibited conduct (Sections 108-112)

28. Prohibited Conduct (2)Direct Discrimination • Central definition Section 13(1) • “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” • New wording • Does not require B actually to have the protected characteristic • Hence, opens up associative discrimination i.e. where A treats B less favourably on the ground of C’s protected characteristic (Coleman v Attridge Law [2008] IRLR 722). • And, there is discrimination if A treats B less favourably because of a wrongly held belief that B possesses a protected characteristic (English v Thomas Sanderson Blinds [2009] IRLR 206

29. Prohibited Conduct (3)Direct DiscriminationCase Specific Provisions • Section 13(2)-(6) create special rules relating to specific protected characteristics • Age – incorporates objective justification as part of definition of direct discrimination • Disability – where victim is not disabled, excludes more favourable treatment of a disabled person (actual or hypothetical) • Marriage etc.. – only prohibited conduct if the treatment is because B is married etc.. • Race – expressly includes within less favourable treatment segregation of B from others • Sex – where victim is a man, excludes from consideration special treatment given to a woman on account of pregnancy/childbirth

30. Direct Discrimination - Examples • Examples • If a Muslim shopkeeper refuses to serve a Muslim woman because she is married to a Christian, this would be direct religious or belief-related discrimination on the basis of her association with her husband. • If an employer rejects a job application form from a white man who he wrongly thinks is black, because the applicant has an African-sounding name, this would constitute direct race discrimination based on the employer’s mistaken perception. • If the manager of a nightclub is disciplined for refusing to carry out an instruction to exclude older customers from the club, this would be direct age discrimination against the manager unless the instruction could be justified.

31. Disability Discrimination • Section 15 adds to the central definitions • A discriminates against B if he treats B unfavourably because of something arising in consequence of B’s disability which A cannot objectively justify • Reverses the decision in Lewisham LBC v Malcolm [2008] 1 AC 1399 • For example, refusing to employ a slow typist whose lack of speed results from a disability would be discrimination (subject to existence of an objective justification) • BUT does not apply if A did not and could not reasonably have known that B “had the disability” (so one part of Malcolm survives)

32. Disability Discrimination (2) • Examples • An employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a proportionate means of achieving a legitimate aim. • The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. However, the slurred speech is a consequence of his impairment. If the licensee is able to show that she did not know, and could not reasonably have been expected to know, that the customer was disabled, she has not subjected him to discrimination arising from his disability. • However, in the example above, if a reasonable person would have known that the behaviour was due to a disability, the licensee would have subjected the customer to discrimination arising from his disability, unless she could show that ejecting him was a proportionate means of achieving a legitimate aim.

33. Indirect Discrimination (1) • Central definition (Section 19) • “A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory to a relevant protected characteristic of B’s”

34. Indirect Discrimination (2) • A PCP is “Discriminatory” under (Section 19(2)) if, in relation to a relevant protected characteristic • A applies, or would apply, it to persons with whom B does not share the characteristic; • It 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 it • It puts, or would put, B at that disadvantage; and • A cannot show it to be a proportionate means of achieving a legitimate aim.

35. Indirect Discrimination (3) • This, therefore, applies indirect discrimination for the first time to disability discrimination and to gender re-assignment • Test of objective justification is familiar. • Government rejected the possibility of using Euro-speak “appropriate & necessary” because it might lead to tight interpretation

36. Duty to Make Reasonable Adjustments (1) • Section 21 • A person discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments • Section 20 • If a person is under a duty to make reasonable adjustments, then that duty comprises 3 requirements • Section 39(5) • The duty to make reasonable adjustments applies to an employer • Schedule 8 • Contains a limitation on the duty. Employer is not subject to the duty where he does not and did not know of the disability and the likelihood of disadvantage

37. Duty to Make Reasonable Adjustments (2) • If (1) a PCP or (2) a physical feature places a disabled person at a a substantial disadvantage compared to someone who is not disabled, then a duty to take such steps as it is reasonable to have to take to avoid the disadvantage • More or less as under old law

38. Duty to Make Reasonable Adjustments (3) • 3rd requirement of the duty is new • - Where a disabled person would, but for the provision of an auxiliary aid, be at a substantial disadvantage compared with persons who are not disabled, a duty to take such steps as is reasonable to have to take to provide the auxiliary aid • NB – the cost cannot be passed back to the disabled person (Section 20(7))

39. Discrimination - Supplementary • Comparison fundamental to direct, indirect & combined discrimination cases. • Section 23 provides that for the purposes of a comparison, there must be no material difference between the circumstances relating to each case. • Specifically in relation to disability, the circumstances include a person’s abilities • Section 24 makes plain that it is no defence for the discriminator to say that he shares the protected characteristic with the victimExample • e.g An employer cannot argue that because he is a gay man he is not liable for unlawful discrimination for rejecting a job application from another gay man because of the applicant’s sexual orientation.

40. Harassment (1) • Section 26 • 3 types of prohibited conduct • A harasses B if • A engages in unwanted conduct related to a protected characteristic and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B • If A engages in unwanted conduct of a sexual nature which has the purpose of effect of violating B’s dignity or creating an intimidating etc… environment for B • If A engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, has the purpose or effect (as above) and because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

41. Harassment (2) • It is not necessary that the victim should have the protected characteristic. It is sufficient that the conduct in question related to that characteristic. • It is not necessary that the conduct should be aimed at the victim. It is sufficient that the conduct had the effect of violating the victim’s dignity etc… • In deciding whether the conduct has the proscribed effect, account must be taken of – B’s perception; the other circumstances of the case; and whether it is reasonable for the conduct to have the effect (Section 26(4))

42. Harassment (3) • Scope of protection – Sections 40 & 41 • Employer treated as harassing employee if a third party harasses employee in course of latter’s employment and employer failed to take reasonably practicable steps to prevent it • Third party provisions do not apply unless employer knows that employee etc… has been harassed on at least two other occasions by a 3P (the same or different 3P) • In relation to contract workers, the principal must not harass a contract worker. Defined as a person employed by another and is supplied to the principal

43. Harassment (4) • Examples • A white worker who sees a black colleague being subjected to racially abusive language could have a case of harassment if the language also causes an offensive environment for her. • An employer who displays any material of a sexual nature, such as a topless calendar, may be harassing her employees where this makes the workplace an offensive place to work for any employee, female or male. • A shopkeeper propositions one of his shop assistants. She rejects his advances and then is turned down for promotion which she believes she would have got if she had accepted her boss’s advances. The shop assistant would have a claim of harassment.

44. Victimisation (1) • Section 27 • If A subjects B to a detriment because B does a protected act, or because A believes that B has done or may do a protected act. • Protected acts include bringing proceedings under Act, giving evidence/information in connection with proceedings, do any other thing for the purposes of Act, alleging that another person has contravened Act • Giving false evidence/information etc… is not a protected act if it is done in bad faith • Not dissimilar to existing provisions relating to victimisation • BUT • No longer requires proof that discriminator has/would act differently to the way he has or would treat an actual or hypothetical comparator

45. Victimisation (2) • Examples • A woman makes a complaint of sex discrimination against her employer. As a result, she is denied promotion. The denial of promotion would amount to victimisation. • A gay man sues a publican for persistently treating him less well than heterosexual customers. Because of this, the publican bars him from the pub altogether. This would be victimisation. • An employer threatens to dismiss a staff member because he thinks she intends to support a colleague’s sexual harassment claim. This threat could amount to victimisation. • A man with a grudge against his employer knowingly gives false evidence in a colleague’s discrimination claim against the employer. He is subsequently dismissed for supporting the claim. His dismissal would not amount to victimisation because of his untrue and malicious evidence

46. Combined Discrimination (1) • Illustration • A black woman has been passed over for promotion to work on reception because her employer thinks black women do not perform well in customer service roles. Because the employer can point to a white woman of equivalent qualifications and experience who has been appointed to the role in question, as well as a black man of equivalent qualifications and experience in a similar role, the woman may need to be able to compare her treatment because of race and sex combined to demonstrate that she has been subjected to less favourable treatment because of her employer’s prejudice against black women.

47. Combined Discrimination (2) • In Bahl v Law Society [2004] IRLR 799, the absence of a right to claim for “dual discrimination” was identified. • If C could not prove that one or other ground of discrimination had operated, then he would lose • Section 14 seeks to address this

48. Combined Discrimination (3) • “A discriminates against B if, because of a combination of two relevant characteristics, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics.” • To prove breach, B need not show that one or other would have succeeded as a direct discrimination claim

49. Combined Discrimination (4) • Further Examples • A bus driver does not allow a Muslim man onto her bus, claiming that he could be a “terrorist”. While it might not be possible for the man to demonstrate less favourable treatment because of either protected characteristic if considered separately, a dual discrimination claim will succeed if the reason for his treatment was the specific combination of sex and religion or belief, which resulted in him being stereotyped as a potential terrorist. • A black woman is charged £100 for insurance. As white men are only charged £50 for the same insurance, she alleges this is dual discrimination because of the combination of sex and race. By comparing the claimant’s treatment with a white woman who also pays £100, or a black man who pays £50, the insurance company is able to demonstrate that the difference in premium is entirely due to sex, not race. The insurance exception in Schedule 3 means that insurance companies can lawfully set different premiums for women and men in certain circumstances so provided the exception applies in this case, the treatment does not constitute dual discrimination. The less favourable treatment is because of sex and an exception makes the sex discrimination lawful.

50. Combined Discrimination (5) • Still under consideration • Not coming into force on 1st October