1. Equality Act 2010 Presented by Caroline Yarrow Senior Associate 020 7783 3538 carolineyarrow@bdb-law.co.uk

2. Direct discrimination - Definition “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” The protected characteristics are sex, race (including ethnic origin and nationality), age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief and sexual orientation. Direct discrimination now includes associative discrimination and perceptive discrimination

3. Direct Discrimination – What is it? To decide whether an employer has treated a worker ‘less favourably’, a comparison must be made with how they have treated other workers or would have treated them in similar circumstances. If the employer’s treatment of the worker puts the worker at a clear disadvantage compared with other workers, then it is more likely that the treatment will be less favourable: for example, where a job applicant is refused a job. Less favourable treatment could also involve being deprived of a choice or excluded from an opportunity. It is not possible to balance or eliminate less favourable treatment by offsetting it against more favourable treatment – for example, extra pay to make up for loss of job status

4. Direct Discrimination - Examples At a job interview, an applicant mentions she has a same sex partner. Although she is the most qualified candidate, the employer decides not to offer her the job. This decision treats her less favourably than the successful candidate, who is a heterosexual woman. If the less favourable treatment of the unsuccessful applicant is because of her sexual orientation, this would amount to direct discrimination.

5. Direct Discrimination - Examples A female worker’s appraisal duties are withdrawn while her male colleagues at the same grade continue to carry out appraisals. Although she was not demoted and did not suffer any financial disadvantage, she feels demeaned in the eyes of those she managed and in the eyes of her colleagues. The removal of her appraisal duties may be treating her less favourably than her male colleagues. If the less favourable treatment is because of her sex, this would amount to direct discrimination.

6. Associative Discrimination Unlawful to discriminate because perceive someone has a protected characteristic or who is associated with someone who has that characteristic. This does not apply to marital status or civil partnership. Discrimination by association can occur in various ways – for example, where the worker has a relationship of parent, son or daughter, partner, carer or friend of someone with a protected characteristic. The association with the other person need not be a permanent one.

7. Associative Discrimination - Examples A lone father caring for a disabled son has to take time off work whenever his son is sick or has medical appointments. The employer appears to resent the fact that the worker needs to care for his son and eventually dismisses him. The dismissal may amount to direct disability discrimination against the worker by association with his son.

8. Associative Discrimination - Examples A manager treats a worker (who is heterosexual) less favourably because she has been seen out with a person who is gay. This could be direct sexual orientation discrimination against the worker because of her association with this person.

9. Discrimination by Perception It is also direct discrimination if an employer treats a worker less favourably because the employer mistakenly thinks that the worker has a protected characteristic. However, this does not apply to pregnancy and maternity or marriage and civil partnership.

10. Discrimination by Perception - Examples An employer rejects a job application form from a white woman whom 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.

11. Discrimination by Perception - Examples A masculine-looking woman applies for a job as a sales representative. The sales manager thinks that she is transsexual because of her appearance and does not offer her the job, even though she performed the best at interview. The woman would have a claim for direct discrimination because of perceived gender reassignment, even though she is not in fact transsexual.

12. Indirect Discrimination The application of a provision, criterion or practice which puts [women] at a particular disadvantage puts [her] at that disadvantage And which the employer cannot show to be a proportionate means of achieving a legitimate aim

13. Indirect Discrimination - Example A college rejects a middle-aged woman as a lecturer in fashion studies on the grounds that she is ‘too old’ for the job. They tell her that they need to recruit a younger lecturer to fit with in the general image of fashion being a fresh and vibrant industry. If this corresponds to a real business need on the part of the college, it could qualify as a legitimate aim. However, rejecting this middle-aged woman is unlikely to be a proportionate means of achieving this aim. A requirement for all fashion lecturers to have knowledge of the industry and general fashion awareness would be a less discriminatory means of making sure the aim is achieved.

14. Harassment Unwanted conduct related to a relevant protected characteristic which has the purpose or effect of (a) violating dignity; or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment Unwanted conduct of a sexual nature which has the purpose or effect referred to above.

15. Harassment Key element – conduct is unwanted: it will be unlawful where It is intentionally harassing; or It has that effect, provided it is reasonable for the victim to have asserted that it has that effect

16. Harassment – Key Points Each person may determine (within reason) what behaviour is acceptable to them and what they regard as offensive: so Employee A can complain about behaviour that employee B finds acceptable; and Employee A can complain about comments made by employee B which she would have happily accepted from employee C

17. Harassment – Examples Unwanted advances Banter/jokes Nicknames Exclusion from activities Physical abuse Pictures

18. Third Party Harassment Employer liability for third party harassment of employees by customers, clients etc will apply in respect of all protected characteristics “Three strikes” rule will apply Make it clear to all third parties that harassment of employees is unacceptable Policies/Procedures Signs Effective grievance/anti-harassment procedures

19. Third Party Harassment - Example A Ghanaian member of staff is upset because a student has attended a college on Monday and Tuesday and on each occasion has made racist comments to him. On each occasion the member of staff complained to his manager about the remarks. If his manager does nothing to stop it happening again, the employer would be liable for any further racial harassment perpetrated against that member of staff by any student.

20. Victimisation Protects a person against less favourable treatment because they have made a complaint of discrimination acted as a witness or informant in discrimination proceedings Unless the person made a complaint of discrimination which was both false and not made in good faith

21. Victimisation - Example A senior manager hears a worker’s grievance about harassment. He finds that the worker has been harassed and offers a formal apology and directs that the perpetrators of the harassment be disciplined and required to undertake diversity training. As a result, the senior manager is not put forward by his director to attend an important conference on behalf of the employer. This is likely to amount to detriment.

22. Combined discrimination Direct discrimination claims will be able to be brought on any two combined of seven protected characteristics Not marriage or civil partnership Applies only to direct discrimination In force 6 April 2011

23. Combined Discrimination - Example An employer does not promote a black women because it thinks that black women do not progress well. It promotes women and black men. It is the combination of being black and female that stops the promotion. A claim for sex discrimination or race discrimination on its own would fail as the employer promotes women and black men.

24. Definition of disability List of capacities removed from “normal day-to-day activities” Physical or mental impairment and substantial and long- term adverse effect on A’s ability to carry out normal day-to- day activities Guidance issued

25. “Substantial” Now defined as “more than minor or trivial” An impairment must have a “substantial” adverse effect on normal day-to-day activities The reasonable adjustment duty is triggered where a disabled person is placed at a “substantial” disadvantage

26. Discrimination Arising from Disability “A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.” No comparator necessary. Only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of the disability.

27. Discrimination Arising from Disability An employer dismisses a worker because she has had three months’ sick leave. The employer is aware that the worker has multiple sclerosis and most of her sick leave is disability-related. The employer’s decision to dismiss is not because of the worker’s disability itself. However, the worker has been treated unfavourably because of something arising in consequence of her disability (namely, the need to take a period of disability- related sick leave).

28. Indirect Disability Discrimination The definition of indirect discrimination, which applies to the other protected characteristics, has been extended for the first time to disability discrimination

29. Duty to Make Reasonable Adjustments Employers are required to take reasonable steps to: (1) Avoid the substantial disadvantage where a provision, criterion or practice applied by or on behalf of the employer puts a disabled person at a substantial disadvantage compared to those who are not disabled. (2) Remove or alter a physical feature or provide a reasonable means of avoiding such a feature where it puts a disabled person at a substantial disadvantage compared to those who are not disabled. (3) Provide an auxiliary aid (where a disabled person would, but for the provision of that auxiliary aid, be put at a substantial disadvantage compared to those who are not disabled.

30. Pre-Employment Health Questions Except in limited circumstances, it is unlawful for an employer to ask any job applicant about their disability or health until the applicant has been offered a job (on a conditional or unconditional basis) or has been included in a pool of successful candidates to be offered a job when a position becomes available. This includes asking such a question as part of the application process or during an interview. Questions relating to previous sickness absence are questions that relate to disability or health.

31. Pre-Employment Health Questions Exceptions Reasonable adjustment needed for recruitment process Ability to carry out function intrinsic to work concerned (even after reasonable adjustment) Monitoring purposes Positive action re disability Job requires a disability (occupational requirement) National security

32. Post-Employment Health Questions Job offers can be made conditional on satisfactory responses to pre-employment disability or health enquiries or satisfactory health checks. But employers must ensure they do not discriminate against a disabled job applicant on the basis of any such response. For example, it will amount to direct discrimination to reject an applicant purely on the grounds that a health check reveals that they have a disability. Employers should also consider at the same time whether there are reasonable adjustments that should be made in relation to any disability disclosed by the enquiries or checks.

33. Employer’s Defence Employers are vicariously liable for the acts of their employees. Defence available where employer took such steps as were reasonably practicable to prevent the employee from doing the unlawful acts, for example: Equality and diversity training Equal Opportunities Policy Harassment/Bullying Policy

34. Equal Opportunities Policy The aims of an Equal Opportunities Policy Equality of opportunity Elimination of harassment Advantages of a policy Improved safety, quality and performance Lower staff turnover, sickness and claims

35. An Equal Opportunities Policy – Key Points The prohibited grounds – identify unlawful discrimination Standards of behaviour – identify basic requirements Responsibilities – for all Disciplinary and other implications

36. Conclusion Remember that you Need to educate and train staff on diversity Need a paper trail for decisions Need to lead by example Need to respond quickly to problems Need to involve HR

37. Questions

38. Equality Act 2010 Presented by Caroline Yarrow Senior Associate 020 7783 3538 carolineyarrow@bdb-law.co.uk