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

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Presentation on theme: "Equality Act 2010 Employment ANDREW STAFFORD QC ANTONY SENDALL EQUALITY ACT 2010 EMPLOYMENT Andrew Stafford QC Antony Sendall."— Presentation transcript:

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

2 Route Map Purpose of the Act Structure Whats 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 /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 – confers on minister power to harmonise with EU law, make subordinate legislation

11 1 st 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

12 How it works (broadly) Sections create substantive obligations on employers and others not to discriminate Sections 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

14 AgeDisabilityGenderReassignmentRaceReligion orbeliefSexSexualOrientationMarriage &Civil P/shipPregnancy andMaternity Direct AssociativeNew PerceivedNew IndirectNew Harassment Changes Harassment 3 rd Party New Victimisation Changes

15 Age No change to definitions Only characteristic where can justify direct New: Associative New: Harassment by 3 rd 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 – (a)P has a physical or mental impairment, and (b)The impairment has a substantial and long- term adverse effect on Ps 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 3 rd 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 3 rd Party Changes to harassment Changes to victimisation

21 Marriage & Civil Partnership No change to definitions Not covered:Associative Perception Harassment Harassment by 3 rd 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 3 rd 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 )

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 Cs 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 Discrimination Case 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 employers 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 Bs 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 Bs

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) 3 rd 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 persons 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 applicants 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 Bs 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 Bs 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 Bs 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 victims dignity etc… In deciding whether the conduct has the proscribed effect, account must be taken of – Bs 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 latters 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 bosss 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 colleagues sexual harassment claim. This threat could amount to victimisation. A man with a grudge against his employer knowingly gives false evidence in a colleagues 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 employers 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 claimants 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 1 st October

51 Substantive Obligations Section 39 – employees and job applicants –Employer must not discriminate or victimise & the duty to make reasonable adjustments applies to an employer Section 40 – harassment Section 41 – contract workers Section 44 – partnerships Clearer language but not very much change Extends third party harassment from sex discrimination to other protected characteristics (except marriage, civil partnership, pregnancy & maternity)

52 Prohibited Conduct: Ancillary (1) Past Relationships Section relationships which have ended e.g. negative reference on an ex-employee because of his race If the conduct would have constituted discrimination during the relationship; and The discrimination arises out of and is closely connected to a relationship which used to exist between discriminator and victim Also, outlaws post-relationship harassment (sub-section (2)) Applies even where relationship ended before commencement of Act (sub-section (3))

53 Prohibited Conduct: Ancillary (2) Employers/Principals/ & Employees/Agents Sections 109 & 110 Designed to ensure that liability may attach both to the person doing the unlawful act and to the person on whose behalf he was acting Replicates existing law Something done by E in course of employment or within authority as agent treated as done by employer/principal (Section 109) Knowledge or approval of employer/principal irrelevant BUT a defence for employer/principal to show that it took all reasonable steps to prevent E from doing it or anything of that description (Section 109(4)) If E renders employer etc.. liable under Section 109, then E commits a contravention of Section 110 E cannot hang onto successful Section 109(4) defence

54 Prohibited Conduct: Ancillary (3) Accessory Liability Section 111 – instructing, causing or inducing contravention Section 112 – aiding contravention

55 Exceptions – Schedule 9 Para 1 A person does not contravene certain substantive obligations by applying in relation to work a requirement to have a particular protected characteristic if it is shown that, having regard to the nature or context of the work, it is an occupational requirement, that applying that requirement is a proportionate means of achieving a legitimate aim, and the requirement is not met. - Offers of employment; access to training etc…; dismissal

56 Exceptions – Schedule 9 Examples The need for authenticity or realism might require someone of a particular race, sex or age for acting roles (for example, a black man to play the part of Othello) or modelling jobs. Considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities. An organisation for deaf people might legitimately employ a deaf person who uses British Sign Language to work as a counsellor to other deaf people whose first or preferred language is BSL. A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.

57 Equality of Terms (1) Replaces the Equal Pay Act 1970 Work equal to that of a comparator Replicates concepts of equal work, work of equal value & work rated as equivalent (Section 65) Re-utilises the sex equality clause i.e. the contractual route (Section 66) GMF factor at Section 69 – NB long-term objective of reducing inequality is always a legitimate aim (Section 69(3)

58 Equality of Terms (2) Section 71 Sex discrimination does not apply where there is an equal pay claim. BUT where there is not, then sex discrimination claim can be brought in relation to pay. This permits, within a sex discrimination claim, the use of a hypothetical comparator

59 Equality of Terms (3) Example An employer tells a female employee "I would pay you more if you were a man" or tells a black female employee "I would pay you more if you were a white man In the absence of any male comparator the woman cannot bring a claim for breach of an equality clause but she can bring a claim of direct sex discrimination or dual discrimination (combining sex and race) against the employer.

60 Equality of Terms (4) Comparators – Section 79 If two persons share the same employer and work at the same establishment, each may be a comparator for the other. If two persons work at different establishments but share the same employer and common terms and conditions of employment apply, each may be a comparator for the other. A person can also be a comparator for another in either of the above circumstances if one is employed by a company associated with the others employer. subsection (9) defines when employers are taken to be associated.

61 Pay Secrecy Section 77 Coming into force on 1 st October 2010 Designed to stop employers gagging colleagues who may wish to reveal or discover what they are paid A term which purports to prevent or restrict P from disclosing or seeking to disclose information about the terms of Ps work is unenforceable against P Equally unenforceable is a term which tries to stop a person from seeking such information from a colleague

62 Pay Secrecy (2) BUT must be made for the purpose of establishing a connection between pay & a particular protected characteristic Colleague includes former colleague Does this create a strategy for team moves?

63 Pay Secrecy (3) Examples A female employee thinks she is underpaid compared with a male colleague. She asks him what he is paid, and he tells her. The employer takes disciplinary action against the man as a result. The man can bring a claim for victimisation against the employer for disciplining him. A female employee who discloses her pay to one of her employers competitors with a view to getting a better offer could be in breach of a confidentiality clause in her contract. The employer could take action against her in relation to that breach.

64 Gender Pay Gap (1) Section 78 Still under consideration – not in force from 1 st October 2010 Applicable to private sector Enabling provision requiring further regulations

65 Gender Pay Gap (2) Regs may require employers to publish pay information relating to the pay of men and women Regs may describe types of information to be published Obligation only on employers with more than 250 employees Not applicable to public authorities or government departments

66 Socio-Economic Duty (1) Section 1 Not coming into force in October Will it ever under this government? An authority which is taking a strategic decision must have due regard to the desirability of doing so in a way which is designed to reduce the inequalities of outcome which result from socio-economic disadvantage

67 Socio-Economic Duty(2) Authority defined to include –Government department –Local authorities –Strategic health authority –PCT –Police authorities

68 Socio-Economic Duty(3) Examples Under the duty, a Regional Development Agency (RDA), when reviewing its funding programmes, could decide to amend the selection criteria for a programme designed to promote business development, to encourage more successful bids from deprived areas. The duty could lead a local education authority, when conducting a strategic review of its school applications process, to analyse the impact of its campaign to inform parents about the applications process, looking particularly at different neighbourhoods. If the results suggest that parents in more deprived areas are less likely to access or make use of the information provided, the authority could decide to carry out additional work in those neighbourhoods in future campaigns, to ensure that children from deprived areas have a better chance of securing a place at their school of choice.

69 Public Sector Equality Duty (1) Sections Government still consulting Public authority must have due regard to the need to –Eliminate discrimination, harassment, victimisation and other conduct outlawed by the Act –Advance equality of opportunity –Foster good relations between persons with and without a relevant shared characteristic

70 Public Sector Equality Duty (2) Examples The duty could lead a police authority to review its recruitment procedures to ensure they do not unintentionally deter applicants from ethnic minorities, with the aim of eliminating unlawful discrimination. The duty could lead a local authority to target training and mentoring schemes at disabled people to enable them to stand as local councillors, with the aim of advancing equality of opportunity for different groups of people who have the same disability, and in particular encouraging their participation in public life. The duty could lead a local authority to provide funding for a black womens refuge for victims of domestic violence, with the aim of advancing equality of opportunity for women, and in particular meeting the different needs of women from different racial groups.

71 Public Sector Equality Duty (3) The duty could lead a large government department, in its capacity as an employer, to provide staff with education and guidance, with the aim of fostering good relations between its transsexual staff and its non-transsexual staff. The duty could lead a local authority to review its use of internet-only access to council services; or focus Introduction to Information Technology adult learning courses on older people, with the aim of advancing equality of opportunity, in particular meeting different needs, for older people. The duty could lead a school to review its anti-bullying strategy to ensure that it addresses the issue of homophobic bullying, with the aim of fostering good relations, and in particular tackling prejudice against gay and lesbian people.

72 Public Sector Equality Duty (4) Note to judges – this duty does not apply to you in the discharge of judicial function (Schedule 18 paragraph 3)

73 Positive Action Ss 158-9: Concept of positive action expanded to allow employers to take proportionate measures: –to recruit or promote a person from an under-represented group where choice between two or more equally qualified candidates – see Employment Code of Practice –to overcome a perceived disadvantage –to meet specific needs based on a protected characteristic Permissive not compulsory NOT IN FORCE UNTIL APRIL 2011

74 Pre-employment Health Checks (1) Limited circumstances for health questions in recruitment until job offer made Until then only permissible checks: –Can comply with requirement for particular selection process –Reasonable adjustments for selection process –Functions intrinsic to the job –Monitoring diversity –Positive action –Disability is an Occupational Requirement Enforcement: EHRC not ET (evidence of discrim?)

75 Pre-employment Health Checks (2) Once job offer made can ask appropriate health related questions

76 Extension of ET Powers Recommendations can be made even if C no longer employed by R Does not apply to equal pay cases For wider workforce, no remedy for failure to comply


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