1. Implications of the Equality Act 2010 Ellen Pugh, Senior Policy Adviser Equality Challenge Unit

2. Outline 1.About ECU 2.Why Equality? 3.The Equality Act 2010 Implications for staff Implications for students 4.The public sector equality duty 5.Questions

3. About Equality Challenge Unit Equality Challenge Unit supports the higher education sector to realise the potential of all staff and students whatever their age, disability, gender identity, marital or civil partnership status, pregnancy or maternity status, race, religion or belief, sex, or sexual orientation to the benefit of those individuals, higher education institutions and society. Funded by the 4 UK higher education funding Councils, Universities UK and GuildHE

4. ECU’s work Supporting institutions Guidance Research Advice Events Bespoke services

5. Importance of equality and diversity in decision making The moral and social case The business case – Staff retention and wellbeing – Student recruitment, retention and attainment Better decision making Reputation and risk Legislative compliance – Equality Act 2010

6. The Equality Act 2010 Applies to England, Scotland and Wales Consolidates and strengthens previous equality law Simplifies and strengthens existing equality law. Designed to address systemic inequalities Everyone in society is in some way protected under the act Specific requirements for the HEIs as education providers, employers and service providers Majority of provisions of the Act came into force in October 2010

7. Equality Act: Protected chracteristics (1) Age: the Act protects people of all age groups Disability: the law includes a broad definition of “disability” Race: the term “racial grounds” covers race, colour, nationality, national origin and ethnic origin Religion or belief: the law covers people who have a religious belief and those who do not Sexual Orientation: the law protects lesbian, gay, heterosexual and bisexual people from discrimination Sex: the law protects men and women from discrimination because of their sex

8. Equality Act protected characteristics (2) Gender reassignment: protection for those who have proposed, started, or completed a process to change their sex Pregnancy and maternity: – Protects female staff because they are pregnant, have a pregnancy related illness and in relation to maternity leave. – Protects female students because of a pregnancy, they have given birth in the past 26 weeks or are breastfeeding. Marital or civil partnership status: protects those who are in marriages or in civil partnerships (limited protection)

9. Types of discrimination 1.Direct discrimination Treating someone less favourably than someone else because they have a particular characteristic e.g. gender, race, sexual orientation, etc. 2.Indirect discrimination A criteria or practice which might appear to treat everyone the same – in practice, it may put people from a particular group at a disadvantage.

10. Types of discrimination 3.Failing to make a reasonable adjustment In deciding what is reasonable, the question institutions need to ask “Is it reasonable for the HEI, not the division, school, faculty or department, to make this adjustment?” 4.Discrimination arising from disability A n individual being treated less favourably because of something connected to their impairment/disability.

11. Other types of less favourable treatment 1.Victimisation Treating someone less favourably because they have complained, or brought a case, of discrimination, or supported someone else’s complaint/case. 2.Harassment (also form of discrimination) Unwanted conduct (linked to one of the protected characteristics) that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

12. Can discrimination be justified? Some types of discrimination can sometimes be justified if the discrimination is a proportionate means of achieving a legitimate aim: Other legislation or statutes in place e.g. national limits on visas for international staff and students In relation to the curriculum. In relation to single sex provision e.g. accommodation. In relation to genuine occupational requirements In relation to national security

13. Key developments in discrimination and harassment provisions Discrimination because of a person’s perceived characteristic. Discrimination because of a person’s association with a person who has a protected characteristic. Third party harassment provisions: Duty on employer to take action when an employee has been harassed by a third party (includes students) on at least two previous occasions.

14. Disability and Recruitment The Equality Act prohibits employers from asking about the health of applicants: Before offering work to an applicant and; Before including the applicant in a pool of applicants from whom the employer intends to offer work to in the future.

15. Pay equality Employers no longer have to justify difference in pay and benefits that have arisen from service of up to 5 years. Employees protected from victimisation by their employer for discussing pay with colleagues to establish pay inequalities due to their protected characteristics. Terms of employment or appointment that prevent or restrict discussions relating to pay now unenforceable. The need for a comparator where a person has less favourable contractual conditions because of their sex has been removed.

16. Ensuring equality: more favourable and different treatment Equal treatment does not equal equality.  More favourable treatment (disabled people)  Different treatment (other protected characteristics)  Voluntary positive action measures in the provision of education and in the recruitment and promotion of staff to: alleviate disadvantage experienced by protected groups reduce underrepresentation of protected groups meet particular needs of protected groups

17. Implications for staff It is unlawful for HEIs as employers to discriminate against employees or people seeking work. This applies in respect of anything done in the course of a persons employment for example: Terms of offer Access to opportunities for promotion Transfer or training Receiving benefits (including pay) Facility or service Dismissal

18. Implications for students The act prohibits the governing body of an HEI from discrimination against an applicant or student in relation to: Admissions the provision of education conferment of qualifications access to any benefit, facility or service Exclusions Similarly to previous legislation alumni also have some protection from discrimination

19. Implications for HEIs and Students’ Unions as service providers The Act requires HEIs and Students’ Unions to ensure that they do not discriminate in the provision of services: Public events and conferences (including open days for applicants) Accommodation Facilities: the library, sports facilities and catering outlets owned by the HEI Students’ unions: clubs, societies, facilities and services

20. Embedding equality Public sector equality duty (Equality Duty) of the Act designed to support HEIs in meeting the requirements and intentions of the Act. Applies to all protected characteristics Commenced in April 2011. Underpinned by specific duties which are different for each country of the UK

21. The Equality Duty HEIs required to have due regard to the need to: Eliminate discrimination, harassment, victimisation and any other conduct prohibited under 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 relevant protected characteristic and people who do not.

22. Due regard Legal term Comprises two elements: 1.Proportionality 2.Relevance In all decisions and functions HEIs are required to give due weight to their obligations under the Equality Act in proportion to the relevance of their obligations to a particular decision or function. ‘Due regard’ requires more than simply giving consideration to the Act.

23. Specific requirements for England No requirement in regulations to conduct impact assessments or engage people from protected groups. However, government has made clear that: ‘... under the requirements of the general duty to have ‘due regard’ to the matters set out in the Act, public bodies will need to understand the effect of their policies and practices on equality – this will involve looking at evidence, engaging with people, staff, service users and others and considering the effect of what they do on the whole community.’ (Equality Act: 2010 The public sector Equality Duty: reducing bureaucracy )

24. Specific requirements for England Publication of information on employees and service users (students!) by 31 January 2012 Prepare and publish one or more equality objective/s by 6 April 2012 Manner of publication

25. Elements of the Act that have not commenced Gender pay gap Combined discrimination: dual characteristics Socio-economic duty

26. Useful websites Equality Challenge Unit www.ecu.ac.uk Equality and Human Rights Commission www.equalityhumanrights.com Home Office equality web pages www.equalities.gov.uk Office for Disability Issues www.odi.gov.uk

27. Questions